I wanted to share this in case any of you didn’t already know. Warren Earl Burger was Chief Justice of the United States Supreme Court from 1969 to 1986. He was appointed by Richard Nixon. And by all accounts, he was very VERY conservative. Anyway, this is his view of the Second Amendment:
"The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies — the militia — would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Chief Warren E. Burger (1907-1995).
This interpretation seems reasonable, as it’s written. What gives me trouble with this conclusion and the common interpretation of “well-regulated militia” is simply: 1. individuals have rights, not groups and certainly not “the state.” 2. The Constitution and Amendments are (I’m probably getting this semantically wrong, for pedants)… basically spelling out limits on State powers and the rights of individuals. So, how the heck (and why???) would a “right” for a state army exist and be articulated in this document? Correct me if/how I am wrong and explain, because it makes no sense to me. No more than saying “Oh, free speech only applies to activities conducted while a member of a state-endorsed collective organization.”
It’s not so much that it’s a collective right, but that they gave specific reasons for why the right should exist, and thus the argument that it only applies to individuals in that specific case.
and hence the other problem with the militia part of it … in 1789 a militia was usually volunteers who brought their guns with them when called …and since they really didn’t want a standing army thyed have to pay for it was considered acceptable
But if the farmers didn’t own guns they didn’t have a militia…(and didn’t eat meat some would argue )
But the mention of a well-regulated militia doesn’t get followed by a statement about “the right of that militia to keep and bear arms”; they could’ve done that, but they instead decided to follow up the bit about a militia by proclaiming something about “the right of the people”.
It wasn’t supposed to make enforceable sense. It was supposed to give two holdout states, Rhode Island and North Carolina, a general feeling the U.S. government wasn’t about to become tyrannical.
Indeed it does. This does not change the fact, as already stated, that the Second Amendment enumerates that right for a specific purpose, namely for the organized defense of the state. The reason “the people” is explicitly mentioned here is that at that time, there was a strong suspicion of standing armies that were not under direct civilian control, hence it was important to the founders at the time that “the people” were to be in control of these militias. It has absolutely nothing to do with unfettered individual rights to gun ownership for any other reason, real or imagined.
The tragedy of the Heller ruling, which was vehemently rejected by the four minority jurists, is that it completely obliterated this explicit militia condition and greatly expanded the meaning of the amendment to become a universal individual right subject only to very narrow limitations, and it did this at a time of rising gun violence in America to an extent unprecedented in the civilized world. The reality is that the Second Amendment has been obsolete and counterproductive for more than 200 years and has been responsible for more death and carnage in America than any other legal principle or legislation ever conceived in its history, with the exception of legalized slavery and its consequences.
My understanding is that it was more common for the guns to be stored in the armory, where the members of the militia could get them for drills or when called to protect the state.
I think this was intended to be a right of states.
I don’t think this is generally accurate. I have read of many militia companies buying guns to issue to their members for drills (and storing them in a central arsenal at other times). There certainly was not a universal expectation that everyone would show up with a personally owned firearm.
Your characterization of Warren is complete nonsense. If he had actually been a conservative, he would have known that there is plenty of precedent for a broad interpretation of the 2nd Amendment.
One – out of many – examples is the Revolutionary War unit Morgan’s Rifles–a group of riflemen at a time when muskets were the common military firearm. And guess what? They supplied their own rifles. This would be roughly equivalent today of people bringing their own fully-automatic M-16’s with them when they join the army.
Your characterization of Warren Burger is complete nonsense. On a scale from 0 to 1, where 0 is most conservative and 1 is most liberal, Warren Burger is rated 0.115 based on his overall voting record. That’s one of the most conservative rankings among all justices, almost as relentlessly conservative as Alito, who rates 0.100. By comparison, a relatively liberal justice like Sonya Sotomayor rates 0.780.
Just because he disagrees with you doesn’t make him “not conservative”. Burger was one of the most qualified justices ever appointed to the bench.
ETA: I think maybe you confused Warren Burger with Earl Warren. Earl Warren was generally considered a liberal justice. But it was the very conservative Warren Burger who made the statement cited in the OP.
I never understood how empowering the people to militarily overthrow a tyrannical government could ever have limited “arms” to mean handheld guns. The relevant arms are those it would take to defeat the government. Today it means the people having their own nuclear submarines, aircraft carriers, and ICBMs (missiles with that destructive power, without regard to whether they actually have to go between different continents).
IMHO the 2nd Amendment is a disaster and should have been changed centuries ago. But, as far as the amendment itself goes, isn’t it obvious that “arms” has to mean “arms as powerful as the government has”?
The main purpose of local militias back in 1789 was not to overthrow the government. It was fighting Indians and putting down slave uprisings when the government wasn’t taking action.
Burger was certainly conservative. But in his era, coming right after the Warren era, judicial liberalism was seen as manifesting in judicial activism. So Burger’s form of judicial conservatism was to not be an activist trying to legislate from the bench. It would be the Rehnquist court that started the modern era of conservative judicial activism.
It should be noted that Burger was not speaking from the bench at the time (1992), having retired. Burger was also apparently not a fan of the Fifth Amendment either, as evidenced in a 1967 speech that Burger had given at Ripon College:
I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity. [Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty. No nation on earth goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.
So apparently there’s no need for any judicial protection against being tortured or otherwise punished for refusing to incriminate oneself, because we value human dignity.
There’s also this gem which would probably elicit calls for abolishing the Supreme Court if it were uttered from the bench today:
To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
As far as official utterings on the meaning of the Second Amendment go, I give notice to the one issued by a committee chaired by Strom Thurmond:
The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.
– Report of the Subcommittee On The Constitution of the Committee On The Judiciary, United States Senate, 97th Congress, second session (February, 1982)
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