Reading the Second Amendment

[hugh damright]

I have noticed a few things about the way that the Second Amendment is read which I would like to comment on. Of course, I am not suggesting that anyone here is purposely changing the Second Amendment to fit their view, but chances are that if you bother to study the Second Amendment then you have often been presented with a modified version.

First, there is the matter of grammar, punctuation, and capitalization. Some people have removed commas from the Second Amendment, which seems kind of disrespectful to me. I think this is done with the intent to belittle the first clause, which regards the collective defense of a free State, and then spin the first clause to just be some introductory or subordinate clause there just to lead up to the second clause.

Also, in the first clause, the word "State" is often changed to have a lower case "S", as if the word "State" doesn't mean "State" as in my State of Virginia.

Then the meaning of the second clause is interpreted in a couple of special ways, such as by construing the word "people" to mean "persons", as if the intent is that every individual must be armed no matter what their criminal past or mental state. And then the part about "shall not be infringed" is taken so out of context that it is assumed that all gun laws, state and federal, must be unconstitutional.

I think it's important to remember that the amendments were drafted by Madison, who had a federalist/nationalist intent of a BOR that would limit the States and federalize individual rights ... but Madison's intent failed, and we got a BOR which only limited the federal government. Since the Amendments were drafted by Madison, and since Madison's intent failed, I think perhaps too much is made of the way the amendments are worded. I think the easiest thing to do is to read the BOR and see Madison's intent of a national (rather than federal) document, to see a bill of civil rights rather than political rights.

I have noticed that if I look at other examples, such as the 1776 Virginia Declaration of Rights, that it would take more than a few grammatical reconstructions to spin away its meaning:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

And I will close with the Second Amendment, with punctuation and capitalization as provided by the national archives at http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html:

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.

 

[griz]

So what do you think that amendment means? If you say that it means the government can maintain a militia, and then say that now means the national gaurd, then my next question is why stick a governmental power in a document that lists only individual rights.

 

[MrTuffPaws]

A well regulated Militia: Who makes up a militia? Answer, the people.

Why do we need a militia? Answer, to maintain the the security of a free State

If the people are the militia, how are they armed? Answer, the right of the people to keep and bear Arms, shall not be infringed., in other words, personal ownership.


As for the word “regulated’, at the time, it meant well functioning, as in clock work. In fact, if you look through the written works of the time, you can find mentions of “regulated watches”.

 

[benEzra]

Look closely at the grammar. "A well-regulated militia, being necessary to the security of a free State" is a preamble; the statement of the right is contained in the phrase "the right of the people to keep and bear Arms, shall not be infringed." Although the preamble does indeed concern "militias" as you state, the amendment does NOT read "the right of the militia," but the right of the "people." This is the same "people" as in the 1st, 4th, and other amendments, so the argument that it refers to the government is specious.

For clarity, consider a grammatically identical sentence with the nouns changed:

"A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed." Stated this way, the right of keeping and reading books would not be limited to the well-educated only, or to those who are registered to vote; rather, it is a right recognized as belonging to all, as a necessary precondition to the the hoped-for result (i.e., a well-educated electorate) stated in the preamble. The "well-regulated militia" was/is likewise a hoped-for result of the 2ndA, not a precondition. The Federalist #46 also touches on the concept in passing, and if you run the numbers that (Hamilton?) used against the population of the United States at that time, you will see that his use of the "militia" encompassed every male citizen of fighting age.

Also, keep in mind some shifts in usage since 1791. Today, the predominant meaning of the participle "regulated" means "governed by government-imposed rules." There is another meaning, older and less common, meaning "well functioning"; "a well-regulated watch," for example, or Civil-War era professional soldiers begin referred to as "regulars." Not having a copy of OED handy, I can't put a date or frequency on this, but it's a thought. But again, that's the preamble. FWIW, the 2nd Amendment is arguably the most regulated (in the modern sense) of all the rights recognized by the Bill of Rights, although few non-gun-owners are aware of just how arcane the regulations can be.

BTW, the term "militia" refers to ordinary citizens, not professional soldiers. Here is U.S. Supreme Court on the term, from U.S. vs. Miller:

[from U.S. vs. Miller:]
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. (emphasis added)

If you are male and between the ages of 17 and 45, U.S. Federal law defines you as part of the militia (the relevant statute was written back when only males were allowed to serve in the military, so modern jurisprudence would apply this to females as well).

Here's an excellent review of the peer-reviewed legal literature as it stood in 1996, and if anything the consensus for an individual-right interpretation is stronger now than it was then:

Under Fire: The New Consensus on the Second Amendment [45 Emory L.J. 1139-1259 (1996)].

This page and this page also have a lot of information on the founders' own commentary on militia/Second-Amendment issues.

 

[TallPine]

hugh, you quoted the following in your argument:

That a well-regulated militia, composed of the body of the people

Doesn't that answer you own "dam" question? damright, it does

construing the word "people" to mean "persons"

Well, just what do you construe the word "people" to mean....?

Dogs...? Martians...? Donuts...? Or only persons wearing a badge...?


I'm sorry, but this stuff gets old .....

 

[rick_reno]

I'm quite sure that the word "people" as used in the 2nd has the meaning as when it's used in the 1st and 4th. It's very clear what the 2nd Amendment is stating.

 

[Gordon Fink]

I smell another troll.

Let “hugh” prove himself first, if he actually wants to have a reasonable debate about the meaning of irrelevant Constitutional amendments.

~G. Fink

 

[cosine]

Also, in English grammer a comma can be used as a substitution for the word "and." If you substitute "and" for a comma in the 2nd Amendment, it would read: "A well regulated militia, being necessary for the security of a free state and the right of the people to keep and bear arms, shall not be infringed.

That says that the government cannot infringe upon a militia and cannot infringe upon the right of people to keep and bear arms. Those are two different provisions in the 2nd Amendment. The phrase "being necessary for the security of a free state" is merely a comment upon the necessity of a militia.

 

[geekWithA.45]

Everyone stopped obsessing over commas ages ago, the concensus is that they do not materially affect the meaning.

Hugh, read and absorb these, and then get back to us.

http://www.constitution.org/mil/rkba1982.htm
http://www.usdoj.gov/olc/secondamendment2.htm
http://www.guncite.com/journals/reycrit.html

 

[Harve Curry]

This version from the Second Amendment Primer, by Les Adams.

 

[cosine]

Everyone stopped obsessing over commas ages ago, the concensus is that they do not materially affect the meaning.

I'm pretty new to this, and have never heard that. You learn something new everyday. That is good.

 

[Werewolf]

OK...
OK...

The TROLL has been fed enough.

Move along - nothing to see here...

 

[hugh damright]

This version from the Second Amendment Primer, by Les Adams.

OK ... and the version I provided was from the original handwritten manuscipt in the national archives, to which I provided a link. So which version is correct? And if the Second Amendment Primer has the Amendment incorrect ... isn't that a little odd?

Well, just what do you construe the word "people" to mean....?

In the context of a free State, I construe the word "people" to refer to the collective of people, the political body which is the free State. But in the context of a Union, I construe the word "people", as in "We the People", to refer to the fifty political bodies which are the States. In other words, I see Virginians as a People, and the US as fifty People (and fifty Militias).

But I think my point was that it is one thing to say that the people shall not be disarmed, and another to say that no person shall be disarmed. We still see the proper grammar in formal use, for instance a sign will say "occupancy by x number of persons is unlawful", but in modern casual use we would speak of how many people were in the room. There's no need for anyone to get uppity, all you have to do is hit a couple dictionaries and see what they say about the words "people" and "persons" and how their use has changed over time.

 

[Carl N. Brown]

In the Constitution, government entities have Powers and Authorities.
and Article I Section 8 gives the Congress the power to raise the army;
to arm, organize and discipline the militia; and call out the militia to
suppress insurrection, enforce law and repell invasion.

In the Constitution, there is one mention of a right: inventors and
authors have the right to protection of their works; and one privilege:
habeus corpus (a privilege not a right because it can be suspended
in wartime). And congressmen cannot be jailed while Congress is
in session, a congressional privilege of individual congresspersons.

The United States, the States, the Congress have Powers and
Authorities; they do not have Rights and Privileges.

The anti-federalists wanted a Bill of Rights to protect individual rights
from government infringement, so we got the Bill of Rights that starts
off "Congress shall make no law...."

The actual phrase "right of the people" appears in the First, Second and
Fourth Amendment. The interpretation of the Second Amendment as
an individual right, like First and Third through Ninth Amendments
are individual rights, is called the "Standard Model" interpretation,
even by Carl Bogus and Michael Bellesiles.

If Congress has the Power under US Constitution Article I Section 8
to arm the militia, why should there be a protection that Congress shall
make no law infringing the Right of the People to keep and bear arms,
if the People in the Second Amendment are the State, and not the
People People of the First and Fourth Amendments?

Law Prof Donald B. Kates has a good, brief write-up of the Second
Amendment in Encyclopedia of the US Constitution. Basically,
Second Amendment is about individual rights like the rest of the BoR.







{The troll has been fed? I have found no mention of goats in this
thread. Trolls live under bridges and ambush goats don't they?
Or is a Troll someone who fishes with bait (trolling)?}

 

[geekWithA.45]

People = collective or states, depending on context?

Hugh,


The fantasy you're weaving/bought into of the collective right of arms is false.

And like I said, read and absorb those links before you get back with us, as they represent deeper grammatical and syntatical analysis than you've demonstrated thus far.

 

[DRZinn]

I don't give a damn what it means.

I have the right to defend myself from those who would infinge upon my human rights, by any means I deem necessary. Including firearms.

 

[hugh damright]

If Congress has the Power under US Constitution Article I Section 8 to arm the militia, why should there be a protection that Congress shall make no law infringing the Right of the People to keep and bear arms, if the People in the Second Amendment are the State, and not the People of the First and Fourth Amendments?

The States are the people, and the people are the States. Virginians are Virginia. I don't understand how we can talk about free States as if the free State is one thing and the people another .. the whole point of a free State is that it is inseparable from the people. I am not Sarah Brady, I ain't even blonde ... I cannot conceive of the notion that Virginia has the RKBA and Virginians do not.

During the Virginia Ratification Debates, when the Second Amendment was being considered, Patrick Henry said that his primary concern was the federal power over the militia. I think it was feared that this power in Section 8, the federal power to arm the militia, would somehow become the power to not arm the militia or the power to disarm the militia. And so that is why it was felt that there should be protection of a declaration that Congress shall make no law infringing on the RKBA.

The way I understand it, the only federal protection of our individual RKBA is as it pertains to militia.

Law Prof Donald B. Kates has a good, brief write-up of the Second Amendment in Encyclopedia of the US Constitution. Basically,Second Amendment is about individual rights like the rest of the BoR.

I'm sorry, but people here are suggesting that I read things which I have already read. As I recall, Kates believes that the Second Amendment is about the individual right to shoot burglars.

 

[geekWithA.45]

Well, Hugh, if you've read those articles and rejected the premise of RKBA as an individual right, I guess we're done.

Thanks for stopping by and playing.

 

[hugh damright]

if you've read those articles and rejected the premise of RKBA as an individual right ...

That brings up a good point ... many people think the Second Amendment is symbolic of all facets of the individual RKBA, such that if I were to say, for instance, that the Second Amendment doesn't protect CCW, then it would be assumed that I am opposed to CCW.

In this instance, someone is saying that I do not accept the RKBA as an individual right, which is false. Of course there is an individual RKBA, for self-defense, for hunting, for plinking ... whatever ... but I do not see the Second Amendment as regarding these things. I believe that it regards the RKBA as necessary to the security of a free State i.e. militia. I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

 

[TexasRifleman]

I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

Well, when you are appointed Attorney General you may interpret as you wish. The last Attorney General to interpret this amendment disagrees with you.

Good luck in law school!

 

[hugh damright]

I also think that constitutional law outweighs an editorial by the AG.

 

[Carl N. Brown]

If the People who have the right to peaceably assemble under the
First Amendent, the right to be secure against unreasonable search and
seizure under the Fourth Amendment and the right to keep and bear
arms under the Second Amendent, are not individuals, what are they?

It is hard for me to believe that the lawyers who wrote the Bill of Rights
used the word People to mean two or more different entities.

 

[Tomcat1066]

I believe that the view I express is constitutional law, and it is my opinion that constitutional law outweighs gun magazine editorials.

So tell us, are you a Constitutional Scholar (as in formally educated in such matters)? Are you a Constitutional law attorney?

If not, then you feel free to believe what you will and I'll just be thankful you're in no position to interpret the law for me.

Tom

 

[geekWithA.45]

The way I understand it, the only federal protection of our individual RKBA is as it pertains to militia.

hugh damright

....As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units. Our conclusion is based on the Amendment's text, as commonly understood at the time of its adoption and interpreted in light of other provisions of the Constitution and the Amendment's historical antecedents. Our analysis is limited to determining whether the Amendment secures an individual, collective, or quasi-collective right....


Office of The US Atty General

Claiming that your view IS constitional law, smeering any other viewpoint as "gun magazine editorials", and sticking your finger in your ears when presented with contrary evidence isn't scoring any points for you, or your position. Crafty slicing and dicing of words isn't going to save you either.

 

[armoredman]

Never mind.