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Posted: 2/20/2006 8:43:48 PM EDT
Many proponents of gun control claim that there is no Constitutional right to keep and bear arms. Indeed, the text of the Second Amendment does say something about a militia:
Second Amendment, United States Constiution 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.

The people who claim that there is no right to keep and bear arms insist that the militia is now the Army, the National Guard and/or the Police, not the average citizen. There are many problems with this notion:

First, from a grammatical point of view, the first half, A well regulated militia, being necessary to the security of a free state, is a subordinate clause. It does not stand on its own. The clause the right of the people to keep and bear arms, shall not be infringed, is independant. It is complete in and of itself and is what the Second Amendment is about. The subordinate clause is an important justification, but it does not limit right to keep and bear arms. So, if it were true that the militia is not the average citizen, it would not matter because the clause referring to the militia does not restrict the clause referring to right of the people to keep and bear arms.

Next, if it were true that the militia is now the National Guard and not the general public, the Second Amendment would not make any sense: why would it say the right of the people if it was really refering to the National Guard or the States? If the goal of the Founders in writing the Second Amendment was to give the states the power to arm the National Guard, they would have said it was a power of the states, not a right of the people.

Finally, if we look at the US Code, we see that the milita is not just the National Guard:

Section 311, Title 10, United States Code (a) The militia of the United States consists of all ablebodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard.

(b) The classes of the militia are:

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

the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Cleary, the militia is not the Army, National Guard or Police. The militia is at least every ablebodied male age 17 to 45 (the Supreme Court has upheld this section of the code).

There does seem to be some confusion about the term well regulated. Some people insist that this means that the government can regulate firearms. Again, there are many problems with this notion:

If the well regulated term means the government can regulate arms, why would the founders say the right of the people to keep and bear arms, shall not be infringed? Clearly, if well regulated means that the government can regulate arms, then the second half of the Second Amendment has no meaning.

If you look closely at the text of the Second Amendment, the true meaning of well regulated becomes clear: by not infringing upon the people's right to keep and bear arms, a well regulated militia is preserved. Nothing else is required to preserve a well regulated militia. In this context, well regulated almost certainly means well armed. Furthermore, it is patently clear that the founders would have opposed anything like mandatory training or registration: shall not be infringed means exactly what it says.

That should be the end of the argument. However, even when confronted with this, many people contiune to cling to the idea that the right to keep and bear arms is not a personal right. In order to form a more solid base for the idea that the Second Amendment means what it says (that everyone has the right to own and carry firearms), we will look at what the Founders, Congress and the Supreme Court have had to say about the Second Amendment and the right to keep and bear arms.

The Founders

The constitutions of most of our states [and of the United States] assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press. Thomas Jefferson

Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. George Washington

Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? Patrick Henry

...who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers. George Mason

The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them Tench Coxe, An American Citizen IV, October 21, 1787

...the people are confirmed by the next article in their right to keep and bear their private arms Tench Cox, Philadelphia Federal Gazette

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions. Samuel Adams, Debates of the Massachusetts Convention of 1788

To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them. Richard Henery Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights

There can be no doubt, the founders intended everyone to be armed. The truth is that no known writing from the period that the Constitution and Bill or Rights were signed exists that states that the right to keep and bear arms is anything but an individual right. Further, in light of all of this, think about why they added the shall not be infringed clause to the Second Amendment. The word infringed does not appear anywhere else in the Constitution.

The Supreme Court

The first case to look at when talking about US Supreme Court rulings relating to the Second Amendment is US v Cruikshank 1875. The case makes the very important point that the Second Amendment, and indeed the entire Constution, does not grant any rights. The Amendments in the Bill of Rights recognize the existence of the rights that they enumerate, and prevent Congress (not necessarily the States) from infringing upon those rights. They do not actually grant those rights.


October 1875 United States V. Cruikshank et al 551
The right of the people peaceably to assemble for lawful purposes...was not, therefore, a right granted to the people by the Constitution. The Government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government. October 1875 United States V. Cruikshank et al 552 The first amendment to the Constitution prohibits Congress from abridging, "the right of the people to assemble and to petition the Government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.

For their protection in its enjoyment, therefore, the people must look to the States.

So, in sum, the First Amendment does not grant a right to peaceably assemble. It recognizes that right, and keeps Congress from infringing upon it.

Now, in the same manner that the First Amendment does not grant a right to peaceably assemble for lawful purposes, the Second Amendment does not grant a right to keep and bear arms. It does recognize that right and it does keep Congress from infringing upon it.


October 1875 United States V. Cruikshank et al 542
6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The second amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.

Now, you will notice that it is clearly said that the Bill of Rights was not intended to limit the powers of the States. Also, the people are to look to the States for their protection in the enjoyment of the rights enumerated in the Bill of Rights. The court brings these two together in recognizing some restriction on the States relative to the Bill of Rights:


October 1875 United States V. Cruikshank et al 552
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of Grievances. If it bad been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States.

So, the court did recognize a right to keep and bear arms, but stated that the Second Amendment is only a restriction on Congress unless it was somehow connected with the powers or the duties of the national government.

The court clarifies this further in the next case, Presser v Illinois


October 1885 Presser V. Illinois 253
The provision in the Second Amendment to the Constitution, that "the right of the people to keep and bear arms shall not be infringed," is a limitation only on the power of Congress and the national government, and not of the States. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.

The court affirmed that the States could not prohibit the people from keeping and bearing arms because it would have deprived the United States their rightful resource for maintaining public security.

The Congress

The above restriction on the states could be stronger, and is in fact much stronger than it appears because of the 14th Amendment.

Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What this amendment did was to make the Bill of Rights, and the Second Amendment, apply to the states. When the amendment was introduced by Senator Jacob Howard he explained that its purpose was to protect "personal rights" such as "the right to keep and bear arms" from State infringement (Cong. Globe, 39th Cong., 1st Session 2764-65 (1866)).

It is interesting to note that, while the 14th Amendment was ratified before the Cruikshank and Presser cases, it was not applied to those cases. For reasons beyond the scope of this discussion, the Supreme Court did not apply the 14th Amendment in any of its rulings until 10 years after the Presser case.

Congress has passed many laws that recognize the right to keep and bear arms. For example, the Freedmen's Bureau Act, which passed as a veto override the same year as the 14th Amendment, provided:

the right..to have full and equal benefit of all laws...including the constitutional right to keep and bear arms, shall be secured by all the citizens of such State or district without respect to race...

Over the years, Congress has passed many laws that recognized and upheld the right to keep and bear arms. Only recently has Congress tried to infringe upon that right. However, Congress has fairly recently acknowledged that the right to keep and bear arms does exist:

Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session (February 1982) 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.

There are many more citations that could be given, but the basic point is this: the right to keep and bear arms does exist. After reading this document, you may ask, "How then do we have these gun control laws, why have they not been struck down?". In the 1960's, after several liberal judges were appointed, the Supreme Court stopped ruling on most Second Amendment cases. When a case came to them, they refused to hear it to avoid having to make a Second Amendment ruling. However, the High Court has very recently started to swing back the other way: they struck down a federal ban on posessing a firearm near a school and they refused to hear an appeal of a case where a lower court struck down a state ban on firearms in a public housing project. In the next few years, a few more gun control cases will probably make it to the Supreme Court, giving the court yet another chance to rule on the Second Amendment. Let us hope they make a good ruling.

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