BIGpedia - Second Amendment to the United States Constitution

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The Second Amendment to the United States Constitution, part of the Bill of Rights, prevents the federal government from infringing on the rights of some to keep and bear firearms.

Contents

1 Text Of The Second Amendment

2 Collective and individual rights

3 Semantic issues

4 Examples of disarmament before the Second Amendment passed

5 Punctuation

6 See also

7 External References

Text Of The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Collective and individual rights

Judicial decisions on the Second Amendment are scarce, so its meaning is a matter of dispute. The term "well regulated militia" is interpreted by gun control advocates as empowering states to maintain armed militias for defense and order. In their opinion the Second Amendment does not grant an individual right to private individuals to own firearms.

Gun rights advocates point out that the first 10 amendments are all individual rights. The phrase "the people" used in the 1st, 4th, 9th and 10th amendments refers only to individual rights. By context "the people" in the 2nd amendment has the same meaning.

Gun rights advocates also note that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organized militia" which was a government-controlled body such as a standing army. Currently U.S. Code: Title 10: Section 311: defines the classes of the militia as

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

The non-Guard members of the militia are all able-bodied male citizens 17 to 45 years old. In essence, a person does not have to be in the National Guard to be in the militia.

On these grounds, gun rights advocates claim that the Second Amendment protects the individual citizens' pre-existing right to keep and bear arms, whether the government agrees or not. In addition, even if the Second Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes.

Both gun rights advocates and gun control advocates point to United States v. Miller (1939), being the only United States Supreme Court accepted case which partly stood on the Second Amendment, which states in part: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Both sides in the gun rights debate claim that the Miller ruling supports their positions. The gun control advocates tend to focus on "we cannot say that the Second Amendment guarantees the right", "ordinary military equipment" and "contribute to the common defense." From these phrases they claim that a person must be a sworn member of a government-controlled armed body and must only be in possession of a government-approved type of firearm for the Second Amendment to apply at all.

Gun rights advocates assert that since Miller was certainly not a member of any "government-controlled armed body", then (by the assertions of the gun control advocates) the Court's decision would have had no reason to mention anything further than his lack of militia membership to reject his claims of protection by the Second Amendment. Further, gun rights advocates argue that the Court did not say that this type of firearm was not protected, but simply that no evidence had been presented in the official record ("not within judicial notice") to show that "such an instrument" could potentially be of use towards a well regulated militia, which was what the court was asking for by saying: "In the absence of any evidence tending to show...some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court did not state that the owner of such a firearm needed to actually be in a "well regulated militia" for the Second Amendment to protect his right to own such a firearm, merely that the firearm could be of some use towards "the preservation or efficiency" of such a militia for the Second Amendment to apply.

It is important to note that nobody appeared in either the Appeals Court or the Supreme Court for the accused, Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only organised militias, but were also common issue to U.S. Army soldiers who fought in World War I. In fact, short-barreled shotguns were normal issue for the U.S. Army right through the Vietnam War and various Special Forces units still use them today. The complete lack of representation for the gun rights side of these issues in Court is probably due to Miller's murder, which had occurred long before the issue got through the appeals process.

For sixty years, the executive branch of the U.S. government also rejected the individual rights interpretation. This changed in 2002; a brief filed by John Ashcroft's Justice Department states: the amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".

The most recent federal court ruling to touch on the issue is that of the 5th Circuit Court of Appeals in 2001 in United States v. Emerson . The justices support the position taken by Ashcroft in their 77-page decision. Notably they state that the United States v. Miller judgment applied only to a narrow category of firearm not typically carried by individuals. Secondly, as regards to the "right" to bear arms expressed in the Second Amendment, the justices state that "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'" Furthermore, "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution." For a historical review of how courts have ruled on the subject, see firearm case law.

The Ninth Amendment to the United States Constitution also potentially supports individual rights to self-defense, and to keep and bear arms. It is also worth noting that historical (as of the formulation of the Second Amendment) documents, as well as contemporary documents to the Bill of Rights, indicate that the Second Amendment was not designed exclusively to denote a collective or individual right to bear arms, but actually encompasses both meanings. The first half, A well regulated Militia, being necessary to the security of a free State, was based on the Framers' belief that a standing army was inimical to the security of a free State, and that only a well-maintained militia could both avoid mercany abuses and maintain the borders of a free state. To understand the second half, the right of the people to keep and bear Arms, shall not be infringed, one must realize that the Bill of Rights was heavily influenced by English common law, which repeatedly stated in its various formulations throughout the centuries (and becoming progressively more liberal in the right to bear arms) that the people had the right to keep and bear arms for three purposes: to dissuade and repel domestic criminals, to repel foreign invasions, and to enable resistance in the face of a tyrannical government.

Semantic issues

Arms had different extensive meaning in 1789

1789 "arms" included flintlock rifles, one-shot pistols, swords, bayonets, and cannons, so some argue that such is all that the Second Amendment was meant to protect -- not shotguns, automatic rifles, grenade launchers, anti-aircraft weapons, nor any weapons of mass destruction. Others contend that if one were to follow that line of reasoning, freedom of speech and of the press would not include radio, nor TV, nor the Internet.

Infringe possibly had a different intensive meaning in 1789

There is some disagreement over what the word infringe means. Relevant to this are definitions given in the 1828 Webster's Dictionary [1], all of which give a sense of the complete removal of a right, not to encroachment nor to abridgement that is now one meaning of the word. It remains an open question whether or not the 1828 dictionary definition was a complete account of usage of the word at that time. According to the Encarta dictionary [2] infringe entered the English language about 1550 from the French word frangere meaning "to break", and is the source of the word fracture. An early appearance is in Shakespeare's Measure for Measure. The Supreme Court of the United States has repeatedly permitted to stand many gun-control laws, all of which would seem to constitute abridgements on Second Amendment protections without completely removing them.

Examples of disarmament before the Second Amendment passed

Just prior to the American Revolution, British troops were seizing gunpowder and cannons (some of which are fairly well-documented to have been stolen from the British) from armories.
About 1680, King Charles II of England used the Militia Act to disarm his Whig opponents.
In 1686, Catholic King James II of England made use of both the Militia Act and the Game Act to disarm his Protestant opponents. After he was deposed, the English Bill of Rights 1689 included perhaps the first written articulation of a right to bear arms.
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Punctuation

The exact punctuation of the Second Amendment is sometimes debated. However, the Bill of Rights being drafted by lawyers, who were most precise in their wordings and punctuations, it is most unlikely that the punctuation to any particular point is superfluous.

External References

Categories: U.S. Constitution | Firearm laws | 1791 in law