The Second Amendment does NOT protect private gun ownership

Posted on April 13, 2008. Filed under: Second Amendment | Tags: , , , , |

I’m going out on a limb here to state the obvious.

Let’s read it: “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.”

A well-regulated Militia. Not a well-armed citizen.

This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service. You keep your Arms so that you can serve in the Militia. This was written when the main form of defense was state and local militias, for which you needed your own gun.

Now, I’m not a strict-interpretation-of-the-Constitution person. I believe it is flexible and can be read in new ways. But this Amendment seems so clearly to be about protecting a volunteer military—to be about military service—that to extend it to people who want to be able to carry guns into a bar or a supermarket, or keep them in their glovebox, is clearly untenable.

 The Second Amendment does NOT encourage or demand that average citizens keep guns in their homes for any reason. It does not mention hunting. It does not mention personal defense. It is strictly about maintaining a national army.

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19 Responses to “The Second Amendment does NOT protect private gun ownership”

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I strongly agree with just about everything in this post. But how the hell could you put Adams ahead of Jefferson?!?

A`well regulated militia in the context of when that was written
was composed primarily of private citizens that owned their own
weapons.

It is indeed sad to see the view of gun ownership as “a protected right” of the American people being put forth as a vaunted normative value. I would much prefer to see the idea of our children being safe on school grounds and in school rooms being promoted as a national ambition — a goal that is so important to us that we are willing to sacrifice other dubious rights to achieve. Nonetheless, I understand why Senator Clinton who sat on the Walmart board would have to take a strong Second Amendment stand. In the South, I have seen that Walmart has rifles for sale and this must be an important profit-making item. The Board of Directors is, after all, in a fiduciary relationship with the stockholders of a company — not with the general public. As usual, the Senator remembers who is buttering her bread.

To Citizen Wells, I say that first, I love Orson Welles. Second, It was indeed private citizens who owned their own weapons, but they were only protected by the Second Amendment when they were using those weapons as part of a militia. It is the militia, the national army, that is covered.

Kip, I know it’s controversial but I like Adams better! He kept us from declararing war on Britain, and really I see his role as a founder (before he was president) as more fundamental than Jefferson’s. What’s your argument for Jefferson?

Adams over Jefferson.
No question, although they both played their roles.
Adams was as close to a political saint as we have
ever had.

the 2 amendment is a right just like free speech is so on and so fourth have a nice day

The important part of the 2nd ammendment is “the right of the people to bear arms, shall not be infringed”. All powers not explicitly given to the Federal or State governments resided with the people. The people were the militia for the first 300 years of this nations history, even before the Constitution was written. It wasn’t until the early 20th century that the National Guard was established doing away with the militias. Do you honestly believe that the Founding Fathers would have approved of the State banning private citizens from owning firearms?

Hello, British Redcoat! Yes, I do honestly believe the Founders would approve laws that prevented citizens from carrying guns in their private lives. “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.”

Parse it: “Since a well-regulated militia is necessary to the freedom of our nation, we will allow citizens to keep and bear arms.”

That is, citizens have to own guns so they can serve in the militia. The entire sentence is predicated on the militia; if citizens are not serving in the militia, there is no need for them to own guns. That seems clear.

On what grounds do you think the Federal and state governments have the right to take away a U.S. citizens basic right to self-defense? This right is certainly usurped throughout the world by other governments, but this government was founded upon the idea that the rights of the individual are supreme and in order to protect those “inalienable” rights certain ammendments were attached to the Constitution. The Founding Fathers knew that any government formed by men would by its very nature attempt over time to draw all power to itself depriving individuals of their rights and freedoms. I think the Founding Fathers would view the size and power of todays Federal government with horror and disbelief.

I think the Founders approved gun ownership as a means to national defense, not personal self-defense; again, because the whole Amendment is predicated on the militia. I think the Founders relied on our system of laws to protect individuals and their rights. Gun ownership is not the Founders’ answer to protecting personal liberties; our democratic legal system is.

Whether the Founders would be dismayed at the size of today’s government is another issue. Regarding guns, I think they expected generations of living by fair laws to diminish interpersonal violence, not the threat of gun use.

When you take the statement out of context, and only use part of it, it can really mean alot of things. Simply. because. its taken out of context! If you believe that you have a right to bear arms, you prob also should be required to participate in the national army. So I suggest you go enlist immediately if you believe in your right to bear arms! This country harbored criminals and rhode island was a state established for ex-cons/quakers to seek refuge from England. The gun nuts would like to make this amendment out to be something for personal protection from “criminals” when alot of the citizens of the 13 colonies were criminals!!! and they didnt acquire guns to blast each other into oblivion… they acquired “arms” to defend themselves from an invasive and dominant force, that was omnipotent worldwide. We are now a modern omnipotent worldwide force and we dont need our citizens running around shooting each other, which is why we have a national army, navy and air force, and police, and national guard, to protect us. Not vigilante NRA members wielding semi automatic weapons

Have to comment here. Your argument is “This Amendment is clearly meant to protect the right of the citizen to own a gun to use in military service.” — yet the 2nd amendment does not mention military service. It mentions the “militia” … which is an entirely different thing. There are basically two types of militia — a formal one (generally wearing uniforms and using goverment supplied weapons) and the informal militia (ordinary citizens, no uniforms, citizens supply their own weapons). I know lots of people get hung up on the “militia” thing — but consider what the Supreme Court has stated. If the militia is a group of armed citizens, and the 2nd Amendment specifically protects the militia — then you can obviously not have a militia if you do not have armed citizens. Owning and bearing arms is essential to the letter and spirit of the 2nd Amendment.

Hello; thanks for writing. There is a chicken-and-egg argument about which came first—gun ownership that could then be used to create militias, or militias that led to/necessitated private gun ownership. I would say the milita comes first, and counter your argument that a militia is a group of armed citizens. That definition is very broad–”a group of armed citizens” could also be a lynch mob, an insurgent group carrying out a coup, a group of people hunting, etc. Because the majority of people in the 18th century were rural, the majority of people used guns to hunt and, on the frontier, to fight Native Americans. Therefore, they could form an armed militia. Armed militias were valuable to the defense of the country at that time, with the British and other groups to the north and west, and so citizens would not be prevented from using their guns in a militia. Guns were for militia—which I still posit was, at that time, military—service. The right to own a gun so you could serve in a militia was protected. The right to own a gun for its own sake was not.

I guess the Supreme Court disagrees with you (D.C. v. Heller and McDonald v. City of Chicago) since it asserted the second amendment applied to private citizens as well.

But let’s follow your trail of thought for a minute, and discuss relevant issues regarding militias:
1. Militias are not only to help enforce laws and enhance public safety, but also to protect against government in case it turns oppressive
2. Many militias are formed AFTER a government turns oppressive – if private citizens had no access to guns prior to the government going bad, they probably won’t be able to acquire weapons when they need them the most
3. By the above two tokens, even if the 2nd amendment applied to militias only, then it would not make sense at all to prohibit private citizens from acquiring firearms

In Urban areas, and assuming the police is not corrupt (I recently read a lot of recent horror stories in parts of Floriday and Puerto Rico), it might be easy to call 911 and get help when needed. But for the suburbs or on road trips, you often will not have access to cell phone reception, and cops could be tens of miles away – firearms are your only line of defense in case your life was endagered (by humans or other creatures).

Take Mexico as an example: strict gun laws, and guess what? Thugs have all the weapons they need/want, while the innocent live defenseless.

Take Canada as another example, or Germany (etc.) very strict gun laws and they still have mall shootings (and elsewhere). Criminals will always have bigger guns – prohibition will only make crime worse and create a black market for firearms.

I pray that this administration treads carefully on this issue, as I fear crime rates might go up with more gun control. Instead, we should be looking into filling people’s mental void and illnesses. Same as lots of drunk drivers in one area should not result in taking cars off streets, but rather train ourselves to detect patterns and stop those before they hurt others, so should be the case with firearms.

The Supreme Court makes many rulings that are later overturned; interpretation of the Constitution is a constantly evolving process but in this case of the Second Amendment we remain constructionists.

We do not rely in the U.S. on private militia to protect us from oppressive government–that’s what makes us different from most other nations. We have a political process which we have used to turn the tide of oppressive legislation, most recently in 20th-century Civil Rights legislation. This idea that we will all shoot our way back to democracy is unfounded.

We won’t comment on the laws of other nations, nor their effectiveness, because we have no background in that and would have to do a lot of studying to approach it. We remain within the U.S., where we rely on our democratic political process to protect us from government oppression. Merging some possibly Washington tyranny with issues of local 911 effectiveness is odd, and again makes no case for private gun ownership as a cure-all.

You are correct that we need to address the mental issues that lead some people to going on gun-based killing sprees; those so opposed to “big government” in this country have done all they can to shut down the social services we have traditionally relied on for mental health management. But your drunk-driving example is not a good one, in that we have responded to drunk driving not by taking cars off the streets but by making drunk driving illegal–just as many want to make buying assault weapons or more than 1-2 guns illegal. I’m old enough to remember when people scorned the idea of drunk driving laws–they said it was ridiculous big-government interference, done, of course, mostly by hysterical women. But drunk driving legislation seems to be helping the problem, as would putting limits on the type and number of guns private citizens can buy in this country.

I have enjoyed a number of your posts and intend to refer my American lit students to it next year. However, I do disagree with you about the Second Amendment. While the amendment refers to the militia, it is true that those militia members owned their own weapons since the concept of a standing army was abhorrent to the framers of the Constitution. You must also take into account what the framers, both Federalist and Anti-Federalist, wrote about this amendment. They are nearly universal in their agreement that individuals need have their rights to own fire arms as protection against a potentially suppressive government

Hello; thanks for writing. Could you point us to sources on the framers believing Americans should fight an oppressive government with arms? I’m not doubting you; I’d just like to see sources. Thanks!

Sorry, I’ll take a legal scholar’s opinion who cites other examples of similarly worded justification clauses in state constitutions of the time meaning,being interpreted as, only a single given reason supporting the right

” What about a claim that, say, “to keep and bear arms” refers only to people’s keeping arms in state-run arsenals, and bearing them while they are under the direct command of state officers? This position seems inconsistent with the operative clause (and again Miller did not hold this). 64 As I mentioned above, a right of the people to bear arms (or to keep and bear arms) is present in the pre-1791 constitutions of four states; because this right against the state government can’t be at the sufferance of the state, “the right of the people to bear arms” seems to have meant a right to have arms even without state authorization. The Indiana, Kentucky, Missouri, Ohio, Pennsylvania, and Vermont provisions guaranteeing the right of the people to bear arms in “defense of themselves and the State” 65 likewise suggest that “bearing arms” meant more than just bearing them under state control. What’s more, under the Militia Clauses, the federal government could at any time take direct command of the militia away from the states. 66 If the right was only a right to possess arms under the supervision of one’s militia superiors — who might well be under federal command — then the right would impose little constraint on the federal government.”

http://www2.law.ucla.edu/volokh/common.htm


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