Why I believe the Second Amendment protects a personal right to firearms (long)

In the trainwreck thread started by haymarketmartyr about “Second Amendment Heroes” http://boards.straightdope.com/sdmb/showthread.php?t=539050 , the inevitable debate about the meaning of “militia” has arisen. In what is referred to by some as the “collectivist” interpretation of the Second Amendment, the argument goes that the Second Amendment is effectively a dead letter, that it refers to an institution no longer extant in American society. I believe that based on the text of the Constitution and its amendments, that this interpretation is flawed. That the Second is meant to protect a personal and individual right to “keep and bear” (own and carry) firearms. In this thread, I will explain my reasons for thinking so. Since I am hardly a legal expert or a student of constitutional law, I would welcome any honest criticism based either on facts or on established legal principles that I might be mistaken about. If you disagree, please try to post something that might be considered a logical argument beyond asserting that it is self-evident that I am wrong.

When the present Constitution was first adopted, replacing the older Articles of Confederation and enlarging the authority of the Federal government, several provisions of the new constitution established the broad principle that the Federal government was to have a monopoly on foreign relations; especially, that the Federal government alone would determine whether or not the States were conducting armed hostilities with a foreign power. To this end Article One of the Constitution lists the powers granted to the federal congress, and Section Ten of Article One details the sovereign powers that the state governments agreed to formally cede to the federal congress. The third clause of Section Ten reads:

So as hypothetical examples, it would be absolutely forbidden for the State of Texas to maintain an army with which it conducted drug or immigration raids across the Mexican border; or for the State of Florida to have its own naval policy with regards to Cuba; or for any of the northern states to invade or threaten Canada. The state governments agreed to cede not just the right, but the actual capacity, to independently prosecute a foreign war- there would be one national army and one national navy.

The first ten amendments to the Constitution, submitted and ratified as a body known as the “Bill of Rights”, came about because of fears that the new Constitution made the federal government too strong. Even though in principle the Federal government had no powers no explicity granted it, ratification of the Constitution became contingent on a statement of things that the federal government would be explicitly forbidden to do. Among these is the Second Amendment:

What seems signficant to me is this: if, under Article One Section Ten the states are forbidden from keeping troops in peacetime, then just what exactly is the Second Amendment promising, as either a check against federal power or as a guarantee of liberty? Specifically, if the Second Amendment talks about something called a “militia” in the context of keeping and bearing arms, then just what exactly is the difference between a “militia” and “troops”?

AFAIK, in every document contemporary with the Second Amendment that mentions the subject of the militia, such as the Federalist Papers #29, or the mention of the militia in the various state constitutions, the answer is clear and unambiguous: the militia is synonymous with the people, the mass of the populace, armed with their own privately-held weapons; the posse comitatus that in times of emergency can be called to the common defense. Many people are under the impression that the Second Amendment protects a state government’s authority to possess armed forces, while leaving open the possibility that private citizens can be completely disarmed. I submit that the original intent of the Second is exactly the opposite- that in the face of the fact that under Article One Section Ten the states could be forbidden from possessing any standing, professional armed force, that an armed citizenry was meant to be the guarantee of last resort.

“But that’s ridiculous!” someone shouts from the audience “you’re claiming that Congress could forbid cities and states from having police!” Actually, that speaks to my point. Civil police forces in fact are protected from Article One Section Ten by the Second Amendment, but only so long as they in fact are civil; that is, to the extent that modern state and municipal constabularies are simply a formalization of the older institution of the posse comitatus, where deputized citizens would aid in upholding the law. That even though modern police consist of persons who have elected to remain permanently sworn to public duty, that they are still not fundamentally distinct from any citizen in good standing who might hypothetically be charged with the duty of enforcing the law. But if laws are passed which ban the civil possession of firearms by the general public, but which carve out a special exception for police officers, the practical effect of that is to elevate the police to the status of an elite armed branch of the government, having a privilege not afforded the common citizen- troops in other words.

I also believe that there is further support for the interpretation of the militia that I have offered within the Constitution itself. If the word “militia” referred solely to a regimented body of militarily trained persons, organized and commanded by the state, then by what authority can the Federal government draft civilians into the army in time of war? That authority is universally held to derive from Article One Section Eight of the Constitution, which states that to execute the laws of the union, suppress insurrections and repel invasions, congress may call forth “the militia”. But if we were to adopt the collectivist interpretation of the Second Amendment and carry it to its ultimate logical conclusion, that conclusion would be that Article One Section Eight simply authorizes Congress to federalize such military units as the states happen to have on hand- NOT to conscript raw, untrained civilians into the Army. To maintain that the word “militia” means one thing in our Constitution when determining who may be in possession of a firearm, and means another thing when determining who may be summoned to federal military service, would reduce the Second Amendment to a travesty; the only meaning left to the Second would be “you have the right to be drafted, and have the Army issue you a service arm”.

Finally, the argument could be made that even if the militia is in fact synonymous with the people, that it would still be within a state’s authority to declare that it is only lawful to keep and bear arms while actively serving in either the militia or a posse comitatus- in modern parlance, while either serving in the military or as a sworn police officer. My response to that is that that raises the entire subject of incorporation- the application of the Bill of Rights to the states. As originally written, the Constitution simply presumes that democracy flows from the states, since that’s the level at which popular suffrage took place. Indeed, until the practice was banned by the Thirteenth Amendment, it was held to be within a state government’s purview to respect and uphold the institution of chattel slavery. But ever since the constitutional cataclysm of the Civil War, the courts have struggled to define the meaning and scope of the Fourteenth Amendment, offering a federal guarantee of liberty and equal rights to all US citizens. Whenever a constitutional question could be reduced in its essence to the question “can the states be tyrannies where the federal government cannot?”, the answer in modern times has increasingly been “no”. The Second Amendment says little but implies much. The naked letter of the Second is simply that the Federal government cannot disarm the citizenry. But if like the other provisions of the Bill of Rights, the Second is taken to be instructive as to the definition of liberty given in the Fourteenth Amendment, then the import of the Second is clear: that any government which would forbid its citizens from possessing weapons, which would mandate that the populace has to remain helpless against and dependent upon the arms of the state, is a tyranny.

Some references:
Article One of the Constitution of the United States of America. See Section Eight, clauses fifteen and sixteen for congressional authority over the militia; see Section Ten, clause three for prohibition on state armies and navies.

The Federalist #29, subtitled “Concerning the Militia” by Alexander Hamilton.

I don’t think there’s any point in disputing your interpretation of the second amendment. I think you’re right about what the founders meant when they wrote it. It’s just that the word of the founders isn’t particularly helpful to the victims of crime today. In the 18th century, “arms” would mean a musket or pistol that could fire once, with limited range and accuracy, and then required a lengthy reloading process. Hence there was no danger of a single person going on a rampage and killing thirteen persons. Now, things are different. The best solution would be a new amendment that cancels the Second, but there’s not much real possibility there, so a reasonable solution would simply be to ignore the original meaning of the Second just as we’ve learned to ignore most of the others in the Bill of Rights.

I agree with you in that I think he is right, but I find the rest of your argument specious. For brevity’s sake, I have divided your post into parts, I hope you don’t mind…

This may be true, but the founders weren’t concerned with the victimization of citizens by other citizens, they were worried about the victimization of citizens by their government. In the first case, relief could be obtained by the just application of law, but in the latter case there is no avenue for justice short of revolution.

This is a red herring. First off, it’s possible to kill a bunch of people without using a gun. Second, even now it is possible to go on a killing spree using only 1 shot per victim and taking a long time to reload.

How are things different? It is still possible for a government to brutalize its citizenry. People murdered each other in the 1700s, and when they weren’t using guns, they were using bombs and knives and swords. People will always kill each other, and making guns illegal is not going to stop it (as demonstrated by those links above detailing killing sprees by people with knives in countries where guns are illegal). But if the police, or the federal government for that matter, decide to start rounding up ethnic groups, I am grateful the the founders gave us a method of defending ourselves.

Say what? How do we ignore the meaning of the other amendments in the bill of rights? I thought we were doing pretty well with the possible exception of the 9th and 10th. What are you thinking of?

For the record: I don’t own a gun and I vote for Democrats.

Since someone is going to come in and say that the general populace could never reasonably fight against the government, I’m just going to link to another thread currently in GD:

As I always say, if “the right of the People” in the second amendment only applies to government organized militia, then “the right of the people to peacably assemble” in the first amendment could be interpretted by totalitarian government as only applying to state sanctioned political groups.

It either means everyone, or it means nothing, in which case the Constitution is dead.

Lumpy, your OP was quite organized, lucid, and well-planned. I agree with much of what you have to say; in fact, I find that my stance has softened slightly towards gun rights recently. However, I disagree with your final paragraph.

It seems to me that the founders must have had a reason for including the dependent clause, “A well regulated militia being necessary to the security of a free State…” must have been intentional. That is, my interpretation is that it was included because the Founders meant for the amendment to apply to those who were part of a well-regulated militia-or at the very least trained and qualified-and not someone so unskilled in incapable that they pose a harm to themselves and others.

Let me draw a parallel to the First Amendment. This is perhaps the most dear of all amendments to Americans, and yet it has restrictions of its own. It is quite unequivocally accepted that citizens have the right to peaceably assemble, protest, write inflammatory material, etc. Almost any attempt by the government to breach these freedoms is grievous indeed.

Consider pornography, legal as a form of free speech. However, child pornography is certainly illegal, and with good reason. It traumatizes and exploits
its subjects, who can only be called victims. While the government has no business restricting or limiting pornography between consenting adults, it has an obvious interest in curtailing child pornography. My analogy to the Second Amendment is this: Just as some forms of speech are considered so heinous as to be outside the realm of permissible, so too are some forms of gun ownership so heinous as to be beyond acceptable. That is to say, certain people (the mentally inadequate, the untrained, the unlicensed, those with no regard for safety) should not be permitted to own firearms. Personally, I’m in favor of regular competency tests, as well as an oath to ensure one’s guns remain securely locked up when not in use. Should a gun be involved in a crime, even if the owner is not, the owner would still face stiff penalties,

If the First Amendment read, “State-sanctioned political groups being necessary to the liberty of a free state,…” I would agree with you. However, neither of these are the case.

ITR champion, if I understand you correctly, your position might be paraphrased as “Yes, the Second Amendment does protect a personal right to keep and bear firearms; but thanks to modern technology, if we fully upheld the Second Amendment, society would collapse. So barring an amendment to the Constitution, our only choice is to ignore the Second”. In another thread I conceded as much in the hypothetical case of being able to build nuclear-powered rayguns. While it’s debatable whether the premise that we’ve effectively reached that point is true, it’s certainly an honest and respectable position. Thank you.

hobscrk777, your points are well taken too. Part of the difficulty is that at the time the Second Amendment was passed, the people and the militia were synonymous; the Founders were inspired by both ancient examples of citizen-soldiers such as the Militia of the Roman Republic and more modern examles such as the Swiss, and hoped that the new American republic would follow the same pattern. The Constitution and documents such as the Federalist #29 are confusing because they speak of the Militia both as an organized military institution AND as simply the mass of the populace, sometimes in the same sentence.

As to your points on qualification to bear arms, I don’t believe that anyone seriously proposes that the Second Amendment (or any of the other articles of the Bill of Rights) are meant to declare a boundless libertarian immunity from government authority. Cecil himself said in his article about the Second Amendment that regulation is fine, formal or de facto banning isn’t. The current social debate is on just how far regulation can go, which is why many states have in recent years passed explicit “shall issue” laws regarding carry permits.

Oh, also in case there was some confusion, I was playing Devil’s Advocate when I said

In other words, I wanted to raise the possible counter to my own arguments for the sake of addressing it.

Why I believe the Second Amendment protects a personal right to firearms: The Supreme Court said it does. Of course, I’ve always believed it, but now I no longer have to defend it, it’s a legal fact.

I believe McDonald v. Chicago will almost certainly close the book on this argument when the Supreme Court incorporates the Second Amendment. I’d be stunned if they turned their backs on a decision made such a short time ago. Mostly I’m curious about whether they will restore the Privileges and Immunities Clause of the 14th Amendment or if they will use the Due Process Clause as the basis of their decision.

Yes, if it offered a collective right, then why doesn’t anyone say that amendments 1 and 3-10 offer no individual but only a collective right.

I don’t know what everybody means when they suggest a collective right, but it seems to encourage survivalist militia-types, which I bet is not the POV they intended.

I believe the Second Amendment protects a personal right to own firearms because that’s the plain reading of the text.

That said, I think this is a bad idea based on outmoded technology. But I feel that as long as the Second Amendment exists it should be followed. We should address the problems of gun ownership be repealing the Second Amendment not ignoring it.

And while I think personal gun ownership is a right, I don’t think it’s an absolute right. No other constitutional right is held to be absolute - why should gun ownership be the exception? There is room in the Constitution for some legitimate limit on firearm ownership just as there are limits on speech or assembly or the exercise of religion.

There are limits.

Somehow these always seem to be forgotten (or ignored) when this topic comes up. And those are just Federal limits. States are free to implement their own restrictions, and some do.

There are far more restrictions on the Second Amendment than there are on any of the other rights conferred by the Bill of Rights. After all this time, as many times as we have explained this in threads like this, it is incomprehensible that anybody could be unaware of this.

from Airman Doors

I am sure you wrote that statement with a straight face. However, I find it incomprehensible that those of you who make us the “we” here who have indeed “explained this in threads like this” do not understand the belief and feeling that millions of Americans have that

***our nations is simply awash in guns and that is a danger in and of itself
*** many guns go far beyond the power necessary for simple self defense protection or hunting
*** it is too easy for people to get guns especially through the gun and knife show route
*** the NRA wields excessive political power making it nearly impossible to do anything about guns
*** too many innocent people pay the highest price - their lives - for others to own guns
*** the so called controls and restrictions that you claim are there are simply ineffective and weak

Regarding your arguments about the wording of the Second Amendment - if the Amendment had only the second clause without the first, much of what you say about its meaning would be true. But that is not reality.

MILITIA is one word and has one meaning. PEOPLE is a different word and has a different meaning. You claim that - in 1789 - they were virtually one and the same.

So every one of the “people” was in the militia? Every single man in the nation? Women? Slaves? The old? The infirm? The cowards? The British supporters and sympathizers? Quakers?

Why can a nation like Canada - which is about as close to the USA as any other in many ways - have both gun ownership but not all the attendant problems with guns that we have here?

Maybe we should take a hard long look at how Canada handles the issue and what their laws are.

I see nothing wrong with most adults owning a pistol for home or business protection. I see nothing wrong with most adults owning a rifle or shotgun for hunting or protection.

I see a great deal wrong with somebody needing a weapon which has a magazine that can carry twenty, thirty or more rounds that can be fired in mere seconds.

Which ones?

These two things are not exclusive of each other. Once again, I’d be happy to tell you why, but I’d sure hate to confuse you. :rolleyes:

This thread is probably not for you, because I’m not even going to pretend to deal with your beliefs and feelings. This thread is going to be wall-to-wall facts from me, something I know you have trouble with due to our attempts to “trick” you with them.

Now, if you would like to refute what I actually said, please do so, with actual facts. Otherwise, why don’t you stick to the other thread that you have hijacked with your “feelings”?

[sub]*bolding and truncation by me[/sub]

USAF - your "facts’ are often your skewed interpretation and skewed definitions of words based on your own “beliefs and feelings”. Your “facts” are often your particular skewed interpretation of history based on your own “beliefs and feelings”. Your “facts” are often a highly selective picking and choosing of which data you opt to recognize and which data you cannot be bothered with because it disturbs your own “beliefs and feelings”.

So please, get off your sanctimonious high horse and quit pretending you are some sort of Mr. Spock processing pure information without regard to their own personal beliefs or feelings. People have already posted pointing out to you how your “facts” in your opening post are not quite what you believe them to be. So please quit pretending you are holier than thou.

You seem to forget than in a representative democracy such as ours, every citizen is free to make up their mind about policy and candidates based on anything they want to. That includes their own beliefs, feelings, and values as well as any factual information they themselves decide is important to them.

Are you under the impression that we are some sort of robot hybrids devoid of anything but pure “facts”?

Why is it that when I try to relate how many Americans feel about guns to the pro-gun crowd here all you can do is respond with negativity?

Again I ask, why can’t we take a look at the system Canada has which seems to work for both gun owners as well as the much larger general public and get some ideas from that? Or do you really not want any ideas other than your own “beliefs and feelings”?

haymarketmartyr, I think you’re already posting about most of these issues in your Second Amendment Heroes thread. (I know you responded to the OP in part of your first post.) Please try to keep these topics separate: this one’s about the Second Amendment and whether or not it protects a personal right to firearms.

The M1A1 tank, M61 Vulcan and M109 Howitzer are all arms by any remotely honest definition of the word arms, and as such as clearly and unequivocally may be owned by private U.S. citizens.

Although, to be fair, I hunt turkey in my tank around this time every year getting ready for Thanksgiving.