# The Right to Bear Arms, Yet again **URL:** \ **Category:** The BBQ Pit\ **Created:** [May 8, 2002, 5:33pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930 "2002-05-08T17:33:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [May 8, 2002, 5:33pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/1 "2002-05-08T17:33:42Z")
According to an item in this morning’s paper, the US Dept. of Justice has now gone on record as advancing the position that the Second Amendment grants an individual and personal privilege of firearms ownership and possession. Presumably, such a right is subject to reasonable and necessary regulation. I would not think that I have a personal right to wander about in public with a rocket propelled grenade launcher. This is a substantial departure from the mainline position that the Constitutional Amendment protects the ability of the States to maintain and equip their own armed forces, not the ability of the individual to own/possess firearms. We should have seen it coming. The Feds, in the person of Atty Gen Ashcroft, and you would think with the President’s informed consent, have buckled under to the gun manufacturers, the gun distributors, and their string puppet, the National Rifle Ass’n, all of whom control a block of single issue voters just as important as the anti-abortion block. AG Ashcroft may have acted from conviction (he is given to some strange convictions) but that doesn’t take plain old politics out of the equation. ---
**Author:** ![Tranquilis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tranquilis/32/3639_2.png) [@Tranquilis](https://boards.straightdope.com/u/Tranquilis)\ **Post date:** [May 8, 2002, 5:59pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/2 "2002-05-08T17:59:16Z")
Sure you got the right forum…? ---
**Author:** ![scotth](https://avatars.discourse-cdn.com/v4/letter/s/b9e5f3/32.png) [@scotth](https://boards.straightdope.com/u/scotth)\ **Post date:** [May 8, 2002, 6:16pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/3 "2002-05-08T18:16:14Z")
The inclusion of the second amendment is not ancient history and significant records exist indicating exactly what was meant by it. Your assertion that > [@](#): > > This is a substantial departure from the mainline position that the Constitutional Amendment protects the ability of the States to maintain and equip their own armed forces, not the ability of the individual to own/possess firearms. is demonstratably false. From the official record of the the Bill of Rights debate on 8 June 1789: > [@](#): > > The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated milita being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person In Federalist number 46, James Madison clearly indicates that an armed populace combined with state (local) governments is desired to prevent a tyranical federal government. > [@](#): > > Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. It is quite clear in the above that he considers the general population as a militia. I know that the words “state” and “militia” were used, but read carefully and get his meaning. And another example, Jefferson in 1787 makes a similar statement in: > [@](#): > > God forbid we should ever be twenty years without such a rebellion… And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms… The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. ---
**Author:** ![scotth](https://avatars.discourse-cdn.com/v4/letter/s/b9e5f3/32.png) [@scotth](https://boards.straightdope.com/u/scotth)\ **Post date:** [May 8, 2002, 6:46pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/4 "2002-05-08T18:46:00Z")
To support your position that the second amendments was not designed to provide for the “personal” right to bear arms requires two things: 1. A (willful) ignorance of relevent historical documents. 2. Reading the second amendment out of its context as a line in document that otherwise is explicitly granting rights to people as way of limiting the power of the Federal Government. Feel free to argue that you think the writers of the Bill of Rights were wrong to include the 2nd amendment. Drop the bit about, “thats not what they meant”. ---
**Author:** ![BF](https://avatars.discourse-cdn.com/v4/letter/b/b5ac83/32.png) [@BF](https://boards.straightdope.com/u/BF)\ **Post date:** [May 8, 2002, 6:56pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/5 "2002-05-08T18:56:47Z")
One word: It’s about fucking time!!! (I know, I know)… ---
**Author:** ![Sphinx](https://avatars.discourse-cdn.com/v4/letter/s/7ba0ec/32.png) [@Sphinx](https://boards.straightdope.com/u/Sphinx)\ **Post date:** [May 8, 2002, 6:58pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/6 "2002-05-08T18:58:47Z")
> [@](#): > > I would not think that I have a personal right to wander about in public with a rocket propelled grenade launcher. Of course not, that’s never been the case. The 2nd Amendment has almost always been recognized as allowing private citizens to own weapons suitable for an individual militia member, which pretty much rules out crew-served weapons and high explosives. ---
**Author:** ![Tennessee\_Ben](https://avatars.discourse-cdn.com/v4/letter/t/f0a364/32.png) [@Tennessee\_Ben](https://boards.straightdope.com/u/Tennessee_Ben)\ **Post date:** [May 8, 2002, 7:04pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/7 "2002-05-08T19:04:21Z")
With all due respect, I think you misapprehend three important facts about what’s going on here: > [@](#): > > \*Originally posted by Spavined Gelding \* > **I would not think that I have a personal right to wander about in public with a rocket propelled grenade launcher.** And neither would most proponents of the individual-right position. The fact that the 2nd Amendment creates an individual right does not mean that that right isn’t subject to some government regulation. No matter what level of scrutiny the Supreme Court will eventually apply to gun regulation, I think it would be safe to say that the government has a compelling interest in ensuring that citizens don’t openly brandish weapons of mass destruction (which arguably aren’t “arms” as protected by the 2nd Amendment anyway.) > [@](#): > > **This is a substantial departure from the mainline position that the Constitutional Amendment protects the ability of the States to maintain and equip their own armed forces, not the ability of the individual to own/possess firearms.** The Supremes have never ruled on whether the 2nd Amendment creates an individual or a collective right. I relaize that lots of people have argued for a collective-right reading, but when you talk about a “mainline position,” a good place to start would be with the only body that has the undisputed power to interpret what rights the Amendment creates. > [@](#): > > \*\*We should have seen it coming. The Feds, in the person of Atty Gen Ashcroft, and you would think with the President’s informed consent, have buckled under to the gun manufacturers, the gun distributors, and their string puppet, the National Rifle Ass’n, all of whom control a block of single issue voters just as important as the anti-abortion block. AG Ashcroft may have acted from conviction (he is given to some strange convictions) but that doesn’t take plain old politics out of the equation. \*\* This “revolution” in interpretation was fueled less by politics and special-interest groups than by a massive and remarkably uniform body of legal academic scholarship. Law Professors as far apart on the political spectrum as libertarian Glenn Reynolds (one of my profs, FWIW) and the by-no-means right wing Larry Tribe have basically conceded that all of the historical indicators and legislative history point to an individual right. Yes, the NRA et al have made more noise, but it’s the legal academics that have done the work. I’ll post some links when I get a chance. ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [May 8, 2002, 7:26pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/8 "2002-05-08T19:26:41Z")
> [@](#): > > This is a substantial departure from the mainline position that the Constitutional Amendment protects the ability of the States to maintain and equip their own armed forces, not the ability of the individual to own/possess firearms. Then I’m guessing that you have a variety of sources which indicate demonstrable support from the mainstream for that postion. Would you be so kind as to provide a representative sample of them? I have an extreme aversion to arguing against yet another _a priori_ claim about states vs. individual rights in regards to the 2nd, and in fact, all, amendments to the Constitution of the United States. Failure to provide the requested information would indicate your supposition is nothing more that yet one more insignificant strawman espoused by the anti-gun crowd. The ultimate result of this would be a catastrophic collapse of your entire thesis; it becomes facially invalid. And I ain’t enough time to travel that road again. I’m due at the gun club for a .22 silhouette tournament. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 8, 2002, 8:17pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/9 "2002-05-08T20:17:20Z")
Not to let the law get in the way of the rhetoric, but: > [@](#): > > \*Originally posted by UncleBeer \* > Then I’m guessing that you have a variety of sources which indicate demonstrable support from the mainstream for that postion. Would you be so kind as to provide a representative sample of them U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948. Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971). Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied 516 U.S. 813. Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813. _But see_ the Fifth Circuit’s [rank dicta](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/5th/9910331cr0.html) from last fall (petition for certiorari still pending). ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 8, 2002, 8:25pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/10 "2002-05-08T20:25:25Z")
Also: Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999). Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942). United States v. Hale, 978 F.2d 1016 (8th Cir. 1992). United States v. Oakes, 564 F.2d 384 (10th Cir. 1977). United States v. Wright, 117 F.3d 1265 (11th Cir. 1997). ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [May 8, 2002, 8:41pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/11 "2002-05-08T20:41:42Z")
Hi, I like guns, gun control people are evil cretins who must be shot in the back of the head, et cetera ad naseum, yada yada yada. Anyhoo, now that that’s out of the way, does someone have a link to a news story or something in which Ashcroft/DoJ makes this announcement? I wanna read it for myself. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 8, 2002, 8:45pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/12 "2002-05-08T20:45:24Z")
> [@](#): > > \*Originally posted by Spavined Gelding \* This is a substantial departure from the mainline position Well, it’s a substantial departure from the Dept. of Justice position. At least that’s what Rush Limbaugh said today. He said that the DOJ has taken the opposite position for the last 40 years. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [May 8, 2002, 8:54pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/13 "2002-05-08T20:54:29Z")
See also, Amar, Akhil R., The Bill of Rights (Yale U. Press, 1998). And,Sphinx, what weapons would be better suited to a well regulated militia than rocket launchers and crew serveds. I suppose the really conservitive, intent of the framer’s position would be that there is an individual right under the Amendment but that it extends only to arms available to the framers,i.e., flint-lock fowling pieces. My point, if there is one, is that the Justice Department’s rather abrupt about-face on the question is a matter of politics, not policy, not law, not Constitutional theory. There is no principal involved, just interest and that interest is in money and votes. Up until now, with the exception of the dicta in the 5th Circuit, no court I know of has held that there is any more an individual right to bear arms than there is an individual, Constitutionally sanctioned right to own an automobile. They can have my car when they prey it from my cold, dead hands. ---
**Author:** ![Sphinx](https://avatars.discourse-cdn.com/v4/letter/s/7ba0ec/32.png) [@Sphinx](https://boards.straightdope.com/u/Sphinx)\ **Post date:** [May 8, 2002, 9:13pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/14 "2002-05-08T21:13:17Z")
> [@](#): > > And,Sphinx, what weapons would be better suited to a well regulated militia than rocket launchers and crew serveds. I suppose the really conservitive, intent of the framer’s position would be that there is an individual right under the Amendment but that it extends only to arms available to the framers,i.e., flint-lock fowling pieces. Well… no. The original idea was that each member of the militia would provide their own individual weapons. Field artillery pieces (the only “crew-served” weapons of the age) were maintained by the standing army. We see something closely akin to this in present day Switzerland, where each male member between 18 - 55 (not sure of the age) is required to have an _assault rifle_ (horrors!!) and a stock on ammo on hand at his home at all times. Flintlocks? Sure, if that’s what the standing (professional) army was still using today. To suggest that the militia (citizen soliders) should be restricted exclusively to the weapons that existed at the time the Bill of Rights was drafted is ludicrous. Which, of course, you knew when you said it. ---
**Author:** ![zwaldd](https://avatars.discourse-cdn.com/v4/letter/z/a9adbd/32.png) [@zwaldd](https://boards.straightdope.com/u/zwaldd)\ **Post date:** [May 8, 2002, 10:09pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/15 "2002-05-08T22:09:14Z")
It’s pretty clear that “the right of the people to keep and bear arms” refers to ‘the people’. It’s right there; no need to interpret it any other way. It doesn’t say ‘the right of a state militia to keep and bear arms’, it says “the people”. I think what really needs to be examined though is the first part - “A well regulated Militia being necessary to the security of a free State”. The second amendment clearly contains a caveat to the right of the people to bear arms. It is that a militia must be necessary to the security of a free state. It can be argued that a well regulated militia consisting of private gun owners may **not** be necessary to the security of a free state. First, there are several secure, free states with strict gun regulations. Second, freedom-securing, anti-government operations by private militias in this country have been unsuccessful, even when they had widespread support (Waco, Ruby Ridge). So perhaps the second amendment needs to be revisited. Not abolished, but maybe reaffirmed with a different caveat - something like “The unregulated private ownership of arms not having any negative effect on society, the right to keep and bear arms shall not be infringed”. That way, those who don’t think a militia is necessary (which constitutes anyone against private gun ownership) will not be able to use that as a platform on which to base oppressive gun regulations. ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [May 8, 2002, 10:25pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/16 "2002-05-08T22:25:00Z")
> [@](#): > > I suppose the really conservitive, intent of the framer’s position would be that there is an individual right under the Amendment but that it extends only to arms available to the framers,i.e., flint-lock fowling pieces. Well, except the Puckel gun, a fully-automatic machine gun patented in Britain 1718. Yup. Seventeen-hundred and eighteen, boys. That’s 1718. [http://www.saf.org/pub/rkba/news/Quick-firingGun.htm](http://www.saf.org/pub/rkba/news/Quick-firingGun.htm) [http://www.saf.org/pub/rkba/news/PuckleGun.htm](http://www.saf.org/pub/rkba/news/PuckleGun.htm) ---
**Author:** ![Tennessee\_Ben](https://avatars.discourse-cdn.com/v4/letter/t/f0a364/32.png) [@Tennessee\_Ben](https://boards.straightdope.com/u/Tennessee_Ben)\ **Post date:** [May 8, 2002, 11:01pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/17 "2002-05-08T23:01:18Z")
A few points: > [@](#): > > \*Originally posted by Spavined Gelding \* > **See also, Amar, Akhil R., The Bill of Rights (Yale U. Press, 1998).** I haven’t read Amar’s _Bill of Rights_ yet, and the copy at my library is out. In any case, I suspect that Amar would be surprised to know that he supports a collective-rights reading: > [@](#): > > _Akhil Amar, “The Bill of Rights as a Constitution” 100 Yale L.J. 1131_ > A good many modern scholars have read the Amendment as protecting only arms-bearing in organized “state militias,” such as SWAT teams and National Guard units. If this reading were accepted, the Second Amendment would be at base a right of state governments rather than Citizens. If so, the Amendment would be analogous to the establishment clause, and similarly resistant to incorporation against state governments via the Fourteenth Amendment. > > Though in some ways congenial to my overall thesis about the Bill of Rights, **this reading doesn’t quite work. The states’ rights reading puts great weight on the word “militia,” but this word appears only in the Amendment’s subordinate clause. The ultimate right to keep and bear arms belongs to “the people,” not the “states.” As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means “states,” it says so.** Thus, as noted above, “the people” at the core of the Second Amendment are the same “people” at the heart of the Preamble and the First Amendment, namely Citizens. What’s more, the “militia” as used in the Amendment, and in clause 16, had a very different meaning 200 years ago than in ordinary conversation today. Nowadays, it is quite common to speak loosely of the National Guard as “the state militia,” but 200 years ago, any band of paid, semiprofessional, part-time volunteers, like today’s Guard, would have been called “a select corps” or “select militia”–and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, “the militia” referred to all Citizens capable of bearing arms. The seeming tension between the dependent and the main clauses of the Second Amendment thus evaporates on closer inspection–the “militia” is identical to “the people” in the core sense described above. Indeed, the version of the Amendment that initially passed in the House, only to be stylistically shortened in the Senate, explicitly defined the “militia” as “composed of the body of the People.” This is clearly the sense in which “the militia” is used in clause 16 and throughout The Federalist Papers, in keeping with standard usage confirmed by contemporaneous dictionaries, legal and otherwise. > > (Emphasis mine. Footnotes omitted) Like I said, I’m not intimately familiar with Amar’s work on the subject, but I don’t think he’s as clearly on your side as you might think. As promised, [here](http://www.guncite.com/journals/) are some links to gen-yoo-wine law journal articles that support an individual-right approach. Wow, that list is long. Obviously, I haven’t read all of the articles listed here, but given that the website on which they’re listed is waaaaaay on the individual right side of the issue, it’s fair to say that the articles probably are too. I know that Glenn Reynolds’ are, and at least [some sources](http://www.prospect.org/webfeatures/2002/05/tapped-s-05-06.html#805amreynolds) are naming his work as influential in the DoJ’s decision. > [@](#): > > **And,Sphinx, what weapons would be better suited to a well regulated militia than rocket launchers and crew serveds.** I would direct you to the Supreme Court’s only twentieth-century decision on the issue, _United States v. Miller_, which held that there was no evidence in the record before them that ownership of a _sawed-off shotgun_ bore a “reasonable relationship to the preservation or effciency of a well regulated militia.” Now, if the Court held that a sawed of shotgun wasn’t per se protected by the Second Amendment, how well do you think My First Howitzer will fare? I’m guessing not very well. (Note that the Court never addressed the individual / collective rights debate, but only focused on whether the _weapon_ fell within the ambit of the Second Amendment. Note also to **minty** that I think the courts were simply misinterpreting the rather narrow holding in _Miller_. There’s a mass of scholarly writing out there on the topic that I’m sure you can find as well as I can. (No sympathy for other people with LEXIS connections! ;))) Furthermore, your argument is especially troubling since it suggests that “arms” refers to anything that goes “bang” and puts holes in things (which you assert is OK, because the right to bear those “arms” accrues only to the state). To paraphrase one wag whose name eludes me, “Won’t we all feel better when Alabama has The Bomb?” > [@](#): > > **My point, if there is one, is that the Justice Department’s rather abrupt about-face on the question is a matter of politics, not policy, not law, not Constitutional theory. There is no principal involved, just interest and that interest is in money and votes.** Saying it a second time doesn’t make it twice as true, you know. > [@](#): > > \*\*Up until now, with the exception of the dicta in the 5th Circuit, no court I know of has held that there is any more an individual right to bear arms than there is an individual, Constitutionally sanctioned right to own an automobile. They can have my car when they prey it from my cold, dead hands. \*\* Well, the Court _has_ found a Consitutional right to travel (it’s arguable whether it comes from the 9th amendment, 14th amendment substantive due process, the 14th Amendment privileges and immunities clause, or the Article 4 p & i clause). Furthermore, the government can’t take away either your car or your driver’s license without holding some kind of formal proceeding against you (14th Amendment procedural due process) and must offer driver’s licenses on an equal basis to all (14th Amendment equal protection.) Now, if there’s that much Constitutional protection of your individual right to own and operate a car (which, as you mention, is explicitly mentioned nowhere in the Constitution), then why shouldn’t there be equally strident protections of a right that _is_ explicitly mentioned? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 9, 2002, 12:22am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/18 "2002-05-09T00:22:55Z")
> [@](#): > > \*Originally posted by Tennessee Ben \* > Note also to **minty** that I think the courts were simply misinterpreting the rather narrow holding in _Miller_. You’re free to believe that, and it’s a more than reasonable reading of Miller. Nevertheless, those cases I cited _do_ establish that it is the law of this nation that the Second Amendment does not confer an individual right to bear arms. (Not even the contrary expression in _Emerson_ changes that, since its Second Amendment section is nonbinding dicta.) The law may eventually change, but for now, it is what it is, and it is wholly incorrect to claim otherwise. ---
**Author:** ![Tennessee\_Ben](https://avatars.discourse-cdn.com/v4/letter/t/f0a364/32.png) [@Tennessee\_Ben](https://boards.straightdope.com/u/Tennessee_Ben)\ **Post date:** [May 9, 2002, 1:19am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/19 "2002-05-09T01:19:03Z")
minty– Thanks, genuinely, for saying that my reading of _Miller_ was “more than reasonable.” This is a topic on which people usually go blowhard pretty quickly, and I really do appreciate your willingness to see a reading that may be different from yours. One minor nitpick, and then on to more important things: Natural rights adherents like myself would prefer to say that the Second Amendment “recognizes” or “protects” rather than “confers” or “grants” a particular right. I’m sure you know that, but it eats at me nonetheless. OK. Just for kicks I pulled up the 6th circuit opinion you referenced, since that’s where I live. After reading the case, I am more convinced than ever that the Circuit Courts are misapplying _Miller_, intentionally or not. An illustrative quote from _United States v. Warin_: > [@](#): > > In _United States v. Miller_, 307 U.S. 174, the Supreme Court held that the National Firearms Act of 1934 did not violate the Second Amendment. In its opinion the Court stated: > > “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.” I think that a more precise statement of _Miller_ would be that "the National Firearms Act of 1934 did not violate the Second Amendment _as applied to defendant_. Otherwise, why put all that junk in the opinion about eighteen inch barrels and what the evidence in the record showed? If Miller had no right to bear arms, then he had no right to have a shotgun of any barrel length–it should have made absolutely no difference to the Court what _kind_ of weapon he had. On the contrary, the Supremes pretty clearly did care what kind of gun it was, because some are within the ambit of the Second Amendment’s protections and some aren’t. But the key here is that the Court never ruled on whether the Second Amendment conferred an individual or a collective right–they just never got to the question, and any Circuit Court that found that they did is, at best, mistaken IMO. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 9, 2002, 1:33am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/20 "2002-05-09T01:33:32Z")
I largely agree with you that _Miller_ has been somewhat misapplied by the lower courts. _Miller_ is certainly consistent with a collective-rights reading, but it by no means depends on a collective-rights interpretation. **Nevertheless, the law of the United States, as it currently stands, is that there is no individual right to bear arms under the Second Amendment.** Period. End of statement. Anyone who says otherwise is selling you something. Feel free to complain about the law, but at least have the honesty to admit that it **is** the law. [Next page](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930.md?page=2)