The 2nd Amendment: An individual right


February 12, 2011, 08:51 AM
I composed this to educate my friends and family on facebook. I wanted to repost here, hopefully this will present some points that will help you in your conversations.

The Second amendment to the Constitution of the United States has been the object of much debate, and even controversy, over the years. It is part of the Bill Of Rights, which are the first 10 Amendments.

The debate is centered upon basically two questions. Does the 2nd amendment guarantee the right of individuals to bear arms, or of of the government to raise an army?

First of all, let us look at the specific text of the 2nd amendment.:

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.

Pretty short and to the point. The question however becomes, "who exactly are 'the people' "?

In the other amendments, 'the people' are widely held to be individuals. Examples:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 'people' here is clearly not the government, or a government agency/body. If it were, would it need to give itself the right to petition itself?

What about the 4th amendment, preventing search and seizure illegally.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Clearly, this is an individual being protected here. A government body is not a person. In law, this has consistently been held as an individual right, requiring warrants to search a person's residence or to seize property.

To further show that 'the people' is neither federal or state governments in wording: the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This shows us clearly, that by the wording of the founding fathers who authored the Constitution, 'the people' were not simply State or Federal governments by the vested power of the people, but rather actual individuals. That is, this wording does not mean "are reserved to the States respectively, or to the states". Nor does it mean to the federal government, the "United States", because it has already stated that these powers are not delegated to them.

Take a good look at the bill of rights.

You'll notice something is very clear. The Bill of Rights, as a whole, was meant to protect individual rights. They do not exist to protect the rights of the government from the people, quite the opposite. They exist to protect the rights of the people from government.

In this light, it would seem inappropriate for the 2nd amendment exist merely to protect the ability of government to create, for instance, the National Guard - especially since the National Guard has been activated to be used in offensive action on foreign soil in several conflicts, hardly being solely used for the security of a free state. Furthermore, the Militia Act of 1903 "created" two militias: an organized militia to be called the Guard, and all other able-bodied men within draft age as "reserve" militia. Thus, even if one could make the argument that only militia members should keep and bear arms, we're all pretty much members of the reserve militia, even if we're conscientious objectors (women too, since they are allowed into service).

In conclusion, a well-regulated militia is certainly necessary to the security of a free state. The way in which this capacity is preserved is by protecting the right of the people to keep and bear arms. It is a right that is declared among other rights we hold dearly as rights of every American - Freedom of Speech, Right to trial by jury, protection of illegal search and seizure. Governments have no need for an amendment that allows the standing armies they raise to possess firearms. That would be absurd. However, as is evidenced by many nations of the world, if the right of the people to keep and bear arms is not protected by law, and vigorously defended, it is taken away.

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February 12, 2011, 06:19 PM
Another, simpler argument is that
* With D.C. v Heller, the Supreme Court of the U.S. ended all ambiguity by definitively ruling that the Second Amendment protects an individual right.
* With McDonald v Chicago, they reaffirmed this, and extended it to make it clear that states do not have the authority to infringe on this right.

I like using SCOTUS precedent because it overrides any "interpretation" arguments people like to make (and have been making for decades). There is no greater authority on matters of Constitutional interpretation than the SCOTUS. If they say it protects an individual right, it protects an individual right and no amount of anti-gunner interpretation can override this.

February 12, 2011, 07:07 PM
I understand the simplicity of that argument, but in my mind, recent rulings are less relevant than the original wording, not least because the composition of the court on the left-right spectrum has as much to do with rulings as anything else, and change over time.

I think that if we convince more people to look at the original wording in its simplicity, and with logic, that over time this will convince the centrists among us.

XD Fan
February 12, 2011, 07:39 PM
Post deleted

February 14, 2011, 01:37 PM
The hard-core antis don't care what the Constitution says. They start a priori that guns are bad, that the right to keep and bear is not a right guaranteed in the 2nd; the argument I hear most often is, "It only has to do with the state's right to have militias."

They look no further than the first half of the 2nd than they accuse gun rights activists of completely ignoring the first half in favor of the second half of the 2nd Ad.

And when you rub their noses in both the historic definition and current legal definition of "militia," their consistent position is that it refers only to the U.S. National Guard, conveniently ignoring the fact (since it suits their purpose to do so) that the National Guard is a regular federal military service (see Perpich v. Dept. of Defense), and they just don't let anyone show up with their own firearms. So then, ipso facto, there is no individual right to keep and bear arms since the Government (who is always there just to help you) provides all the arms necessary.

They then go on to read a lot more into U.S. v. Miller than is there; and build further with (IIRC) U.S. v. Case and U.S. v. Tot. I don't recall at this moment which case did it (Case or Tot), but one of them actually introduced an "intent test," in which you must intend to keep and bear in service to a militia in order to keep and bear.

From this tissue-thin legal precedent, the antis have spun an entirely rewritten and revised Colonial history in which none of the Founders ever contemplated individual ownership of firearms; not in their private writings, nor even in the Ratification debates. Just Google Michael Bellesiles for one prime example.

So it is with this mindset that the antis completely reject Heller and any subsequent pro-gun rulings as "judicial activism" by a "right-wing court."

Their numbers are diminished, and shrinking, but they are not gone; if anything, they are getting crazier in their rhetoric, and they are still very well funded and have strong friends in the liberal acedemic community, the socialist international political community, and the media.

They will ruthlessly exploit any firearm tragedy to further an anti agenda, and smugly and/or condescendingly dismiss any evidence of self-defense gun use as "statistically meaningless/irrelevant," proceeding from "fundamentally flawed analysis." The basis of calling it fundamentally flawed is that is shows significant Defensive Gun Uses throughtout U.S. society. And to them, "That can't be right! Guns are bad!! They kill people!!!"

They will ignore the U.S Justice Dept.'s (the non-political appointees) own statistics showing that the U.S. Crime rate is down around where it was in the mid-60's, that show that stolen guns are used in less than 10% of violent gun crimes, that show that there's really no such thing as a "gun show loophole," and that no "Kop Killer Bullets" have ever been used to kill any police officer.

Because none of that fits their preconceived notion that "gun are bad."

What it boils down to is a fundamental philosophical disagreement about the nature of the indivivual, individual liberty, history, human nature, and various social constructs that stem from all that. There is no amount of reason, no amount of logic, nor history or precedent, a pro-gun person can use to sway them; they categorically reject, deny, and disparage your fundamental principles.

All-in-all, best not to engage them in "debate" at all.

You only get this. :banghead:

JohnF Boulder Co
February 14, 2011, 04:31 PM
I also don't like to rely on recent court decisions.
(The courts have been horribly wrong, from time to time)

Recognizing that you might not alter the views of the firmly anti-gun-rights folks, I try logic (Yeah, right...) or emotiveness, and ethical superiority -since they use it all the time. Deny them that particular "high ground".

First and maybe easiest, is whenever they drag out the old canard about gun owners being frightened and living in fear of everyone around them: I and others who argue for civilian's gun rights don't do so only for myself, but for everyone. We trust everyone to be sane, safe, and reliable. Sight-unseen, just as citizens, unless they've proven themselves otherwise, they're worthy of that level of trust. Everyone is worth fighting for, trusting them to fight at your back. Every hero was just a regular Joe at one point.

Others seem to feel that their own family & friends, neighbors and co-workers (all of us) are untrustworthy, unreliable, prone to unstable outbursts, ready to go off on murderous rampages at a moment's notice.
Everyone who doesn't have a government job is just too slow and stupid, they feel.
Hardly an egalitarian or "liberal" world view (I like hitting so-called "conservatives" with that definition of their "liberal" worldviews.).

Try this:

Why the Gun is Civilization
March 23, 2007
by Marko Kloos

Human beings only have two ways to deal with one another: reason and force. If you want me to do something for you, you have a choice of either convincing me via argument, or force me to do your bidding under threat of force. Every human interaction falls into one of those two categories, without exception. Reason or force, that’s it.

In a truly moral and civilized society, people exclusively interact through persuasion. Force has no place as a valid method of social interaction, and the only thing that removes force from the menu is the personal firearm, as paradoxical as it may sound to some.

When I carry a gun, you cannot deal with me by force. You have to use reason and try to persuade me, because I have a way to negate your threat or employment of force. The gun is the only personal weapon that puts a 100-pound woman on equal footing with a 220-pound mugger, a 75-year old retiree on equal footing with a 19-year old gangbanger, and a single gay guy on equal footing with a carload of drunk guys with baseball bats. The gun removes the disparity in physical strength, size, or numbers between a potential attacker and a defender.

There are plenty of people who consider the gun as the source of bad force equations. These are the people who think that we’d be more civilized if all guns were removed from society, because a firearm makes it easier for a mugger to do his job. That, of course, is only true if the mugger’s potential victims are mostly disarmed either by choice or by legislative fiat–it has no validity when most of a mugger’s potential marks are armed. People who argue for the banning of arms ask for automatic rule by the young, the strong, and the many, and that’s the exact opposite of a civilized society. A mugger, even an armed one, can only make a successful living in a society where the state has granted him a force monopoly.

Then there’s the argument that the gun makes confrontations lethal that otherwise would only result in injury. This argument is fallacious in several ways. Without guns involved, confrontations are won by the physically superior party inflicting overwhelming injury on the loser. People who think that fists, bats, sticks, or stones don’t constitute lethal force watch too much TV, where people take beatings and come out of it with a bloody lip at worst. The fact that the gun makes lethal force easier works solely in favor of the weaker defender, not the stronger attacker. If both are armed, the field is level. The gun is the only weapon that’s as lethal in the hands of an octogenarian as it is in the hands of a weightlifter. It simply wouldn’t work as well as a force equalizer if it wasn’t both lethal and easily employable.

When I carry a gun, I don’t do so because I am looking for a fight, but because I’m looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don’t carry it because I’m afraid, but because it enables me to be unafraid. It doesn’t limit the actions of those who would interact with me through reason, only the actions of those who would do so by force. It removes force from the equation…and that’s why carrying a gun is a civilized act.

February 24, 2011, 04:30 PM
Permission to use these? I would like to if possible and post them in other forums/ places.

March 17, 2011, 02:29 AM
The most comprehensive study ever made on the subject . It's gone mostly ignored . Read it !!!!!!!!!! It is posted on the net if you do a search.

97th Congress












Printed for the use of the Committee on the Judiciary



88-618 O WASHINGTON : 1982

For sale by the Superintendent of Documents, U. S. Government Printing Office

Washington, D.C. 20402

March 17, 2011, 03:04 AM
I am no legal scholar, but my understanding is that the United States constitution was drafted from state (or colony?) constitutions. Those constitutions specifically stated the right to bear arms was and individual right.

At least three states currently have language in their constitutions that specifies that the right to bear arms is a right of individual citizens. Idaho, Washington, and Tennessee all specifically state this.

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