The “right” to bear arms does not exist

Cover of "A Well-Regulated Militia: The F...

I’ve learned the hard way that there are two subjects sure to rile Americans, sometimes in an irrational way (just look at some of the comments on the subjects on this blog). One subject is Medicare and the other gun ownership. In both cases well-funded lobbying groups purporting to represent millions of Americans lobby their positions heavily to politicians and use their clout to defeat politicians who disagree with them.

Seniors believe they earned their benefits and gun owners believe they have a constitutional right to their guns. Let’s examine the latter.

The 2nd amendment (12-15-1791) to the Constitution says:

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.

Here is what a former Supreme Court chief justice had to say about the above.

The following is from a recent column on Bloomberg.com

Warren Burger was a conservative Republican, appointed U.S. chief justice by President Richard Nixon in 1969. In a speech in 1992, six years after his retirement from the court, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was only “to ensure that the ‘state armies’ — ‘the militia’ — would be maintained for the defense of the state.”

A year before, Burger went even further. On “MacNeil/Lehrer NewsHour,” Burger said the Second Amendment “has been the subject of one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.”

First, recall that in 1791 people were state focused and apprehensive about a strong central government. In addition there was no standing national army to speak of; most of the fighting in the Revolution was by state militia. Indeed even up to the War of 1812, the bulk of the army was state militias.

Let’s look at some key words. Some people say a “regulated” militia does not mean arms are regulated, but that the militia was to be well maintained and organized. Fair enough, it may well mean that, which in my view lends credence to the idea that the focus of the amendment is arms in conjunction with the necessity of a militia. In fact, some states at the time required certain citizens to bear arms and be available for the local militia. The militia evolved into state national guard units under the control of the governors until such units were called to active duty in federal service. Having been in a national guard unit called to active duty in 1968-1969 I know how that works. Having been on a street corner in Newark, NJ in 1966(?) with a rifle I also know how it works for the states. I had a right and obligation in both cases to bear arms.

Now let’s look at the word “state.” In the context of a militia, state would mean individual states of the U.S., but it could also mean the broader definition of a larger government entity such as the entire country. But either way the purpose of the amendment was clearly to help insure the security of the “state.”

Since the Constitution is a federal document, it appears that the Amendment is intended to prohibit the federal government from preventing the individual states from maintaining an armed militia which makes sense given the states obsession at the time with their individual rights. Indeed, Thomas Jefferson did not see the need for much of a national military at all.

Finally, there is the word “arms,” which in the broadest context means weapons including less and far more than a gun. For those who like to read a portion of the Amendment literally (“the right of the people to keep and bear arms shall not be infringed.”), can there be any legal limit on what weapons can be possessed? Taken to the extreme (or maybe not) the government could not infringe on my right to an RPG, fifty caliber machine gun or tank for that matter. Where does the Constitution define the type of arms it refers to? In fact, given there is no definition of arms, there is support for the argument that the amendment does only relate to participation in militias because militias would have cannon and other arms available at the time.

The well-worn argument of the NRA and others regarding the second amendment only works if you ignore the first thirteen words, which more often than not is what happens.

Let’s face it, the weapons industry and all that is related to it is big business so it is in someones best interest to assure there is a wide demand for guns, somebody spent a great deal of money on the 300 million guns in the U.S. Just as the pharmaceutical industry maneuvers to delay a generic drug as long as it can, the gun lobby will seek to minimize any effort to limit access to guns or further restrict the type of guns that can be owned. Hey, it’s just business!

Finally, there is the [fringe] position that citizens need guns to protect themselves from the federal government, that some day there will be a need for a second revolution. I have only one word on that … drones (and everything else in the federal arsenal).

Where does this leave us? I have heard no call to ban all guns, no call to take away any legal guns, no ban on hunting or target or skeet shooting nor should there be.

But there does need to be some additional limits on easy access, more limits on the types of guns and a more open and accessible national record on the sale, transfer and purchase of guns. The purpose being to limit as much as possible the access to guns by individuals who are likely to use them to kill people. The evidence if quite clear that easy access to guns is a contributing factor in mass killings. The experience of other countries such as England shows that reduced access does mean reduced killing with guns.

Have we deteriorated as a society to the point where the following is an acceptable solution to anything?

I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.

Before Congress reconvenes, before we engage in any lengthy debate over legislation, regulation or anything else, as soon as our kids return to school after the holiday break, we need to have every single school in America immediately deploy a protection program proven to work — and by that I mean armed security – from NRA presidents speech

Proven to work you say? So, if a crazed intruder armed with an automatic or semi-automatic invades a school, is he not likely to shoot the outgunned security officer first? Proven to work? Ask the widows of security guards at banks, and armoured car companies if it is proven to work or apparently even a deterrent.

You may have a different point of view, but it seems to me that you must base your argument on something other than the Constitution of the United States.

To my friends who disagree with me, I hope you can accept a different point of view and still be friends. I don’t want to walk the streets knowing people are carrying guns, I don’t want to live in a society that rationalizes more guns stop the use of other guns. Thirty-four people are shot to death every day in America. I don’t want to accept that the United States of America is alone in being the most obsessed gun society on earth or admit that we are so fundamentally screwed up that it needs to be so.

22 comments

  1. No problem. Times change. So, if you want to change/clarify the 2nd Amendment, Article V of the U. S. Constitution provides a clear method:
    • Have both houses of congress approve it by a two-thirds supermajority vote, and send it to the states for ratification. Or,
    •Two-thirds of the state legislatures can ask Congress to call a national convention to propose amendments.

    State ratification within a reasonable time of congressional action:
    • Three-fourths of the state legislatures approve it, or
    • Ratifying conventions in three-fourths of the states approve it.

    The colonies adopted the ancient practice that was still in vogue in England, the militia system, since they could not financially support a standing army. The “militia” was the entire adult male citizenry, who were not simply allowed to keep their own arms, but affirmatively required to do so. With slight variations, the different colonies imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied white man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms applied to every household, not just to those containing persons subject to militia service. So, even those exempt from militia service were required to keep arms.
    In 1792 Congress, meeting immediately after the enactment of the second amendment, defined the militia to include the entire able-bodied military-age male citizenry of the United States and required each of them to own his own firearm. Burger is clearly wrong when he suggests the 2nd amendment’s use of the term “militia” meant a formal, military force separate from the people. The Founders stated what they meant by “militia” on various occasions – as “the whole body of the people.” When referring to a military force separate from the people, they used the pejorative term “select militia.”
    In short, the Founders guaranteed the arms of the militia by guaranteeing the arms of the individuals who made up the militia; they would not differentiate between the two groups.
    Similarly, it is impossible to reconcile the interpretation of militia as a formal military force with the plain language “the right of the people” – had the Founders intended a state militia, they would have put the 2nd amendment language somewhere else. Consider the 1st amendment “right of the people”, 4th amendment “right of the people”, 9th amendment “right of the people”; compared to 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.” Remember that the 10th amendment, back in the day, was clearly intended to create a limited federal government of enumerated powers … meaning that the right to keep and bear arms was always intended to be an individual right to be enforceable against the federal government.
    Also, contemporaneously with the adoption of the United States Constitution, many states conditioned their votes on the Bill of Rights and concurrently passed their own state constitution provisions guaranteeing an individual’s right to keep and bear arms. How then does Burger reconcile the decision by states (and colonies before them) to ALSO create an individual right to keep and bear arms:
    • Pennsylvania’s 1776 constitution declared: “That the people have a right to bear arms for the defence of themselves and the state…”
    • Vermont’s constitutions of 1777 and 1786 similarly proclaimed: “That the people have a right to bear arms for the defence of themselves and the State…”
    • Massachusetts’s 1780 Constitution asserts: “The people have a right to keep and bear arms for the common defence.”
    • The North Carolina Constitution of 1776 guarantees the people’s “right to bear arms, for the defence of the State”.
    After the constitution and bill of rights were ratified, in the next 50 or so years, the “right to bear arms in defense of himself and the State” was adopted by nine states and the Republic of Texas. Most state constitutions adopted after the 2nd Amendment adopt the individual rights position.
    Finally, note the difference between the words “keep” and “bear”. In colonial times, the word “bear” was often used in relation to militia service in other documents with the word “keep” which was used almost exclusively to describe arms possession of individuals in their homes.
    So, Amendment 10A might read: The right of a state to arm people to form a well-regulated select militia for the common defence shall not be infringed.

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  2. A friend sent the following; food for thought.

    Again, a very well presented set of thoughts–and well supported My personal believe is that our ( national ) problem is far greater than the presence of firearms–it appears to me to be the attitude, the disregard of rights of others, the frustration of our daily lives that manifests itself in violence–usually of the senseless type. I find myself unable to articulate my feelings on the subject but I do feel convinced any additional “law”/ regulation is by far short of a guarantee that such incidents will be prevented.

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  3. I own shotguns, but I do not see a need for an assault weapon and being ex-military I do know the difference, and I also agree with you. WHen do we draw the line, everything can be used and called an assault weapon. I am not arguing with you, but I do know that our Politicians will take the easy way out, so they can save their job. Instead of doing what is right, enforce the law already on the books.

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    1. Thanks, Mike, we can easily define, in depth and detail, “assault weapons” and outlaw those weapons rather than bicker about terminology. If you voted, we elected those politicians and now we must reject them when they do not support their constituencies. Meanwhile, for the sake of God, let us outlaw the same weapons that killed little children in Sandy Hook and just killed volunteer firemen in ambush in New York state. Thank you.

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  4. Mr. Quinn, I can still be friends but I disagree with your view. Who cares about what Warren Buger said in 1992. Clearly you can find people on both sides of the second amendment. What does matter is what the supreme court decides about the second amendment. Of coarse the president (current, previous, or future ) is going to appoint judges with views similiar to his own, so even the supreme court justices will have opposing views. We’ve been doing it one way for over 200 years and that says something about the second amendments intent. People dont blindly trust the government, not with our tax dollars, not with our medical care, and not with our personal safety. Law abiding citizens should have a right to carry a concealed firearm. 44 states cant be wrong. Criminals dont ask for permission to steal, rape and kill, so law abiding citizens should have the right to protect themselves and their families.

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      1. About as far as I can throw an elephant. As for your reply to mikedidi, What is a military assault rifle ? An assault weapon is anything used to assault someone, whether it be a baseball bat, a knife, a vehicle or a gun. There is no assualt without ill intent. The assault comes from the evil among us. Our military isnt in the assault business. They are in the defense and protection business. “Military assault weapon” is a media and anti firearm crowd phrase used to inllicit fear and intimidation among the unknowing population and advance their anti gun agenda. Today “assault weapons” tommorrow all firearms. As far as the 30 round clips go, Do you really need a 72 inch tv, or a car that goes 200 mph? No, but you can if you want to. How come we put up with alcohol, cigarettes, and texting or using the phone while driving? Against the law, right? Yet you cant drive without seeing someone doing it. How many people does that kill daily?

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      2. Tim, your ignorant diatribe is barely worthy of a response, Your “word games” are infantile. If our military “is not in the assault business”, explain the Iraq war! Equating a big screen TV with a military combat weapon is ludicrous! You’re very sick and should get help.

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      3. Jerry, thanks for the cheap shots. I never assaulted your character, pun intended. Our politicians ( democrats too ) try to convince us the Iraq war was about protecting the Iraq people and eradicating the taliban. We all know it was really about money and the flow of oil. Our veiws are miles apart. I will never see your point of view as I’m sure you will never see mine. I understand your passion. I guess we’ll just have to wait and see how it all works out. I know what corner my money, my voice and my letters are going in. Like most things in this country it really all comes down to the dollar and politicians who want to keep their cushy jobs. Thanks again for the insults, it really does prove your superior intellect.

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    1. I think 44 states can be wrong and I think a society can be wrong. Just look at Germany in the 1930s and 1940s, an entire society was convinced to participate in something very wrong. Just because a large number of people support something does not make it right.

      What you are saying is that the United States has become a society where to be safe on our streets and in our homes we must posses or carry a fire arm. Are criminals so prevalent on our streets that we need to become vigilantes?

      Forget the right to carry a gun for a moment, based on what you are saying I am far more concerned about the perceived need.

      Dick

      Richard D Quinn Editor

      http://www.quinnscommentary.com

      Health Insurance Illuminated http://blog.horizonblue.com/

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  5. I totally agree with you, Mr. Quinn; however:
    In 2008 and 2010, the Supreme Court issued two landmark decisions concerning the Second Amendment. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual’s right to possess a firearm, unconnected to service in a militia[1][2] and to use that arm for traditionally lawful purposes, such as self-defense within the home. In dicta, the Court listed many longstanding prohibitions and restrictions on firearms possession as being consistent with the Second Amendment.[3] In McDonald v. Chicago, 561 U.S. 3025 (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[4]

    As a student of Political Science and History, I think those Supreme Court decisions were totally wrong, but what I believe doesn’t matter.

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    1. I still believe that as a hunter I have a right to have a weapon and I do not see a problem. The problem has never been guns, but the people who sometimes own them. What is interesting is that people want to hurt everyone to show a reason to enact a new law that will do nothing, if not enforced.

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      1. Mike, would you at least agree that NO hunters (and NO other civilians, for that matter,) need military assault rifles with 30 round magazines?

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  6. Government’s answer is pass more legislation. Criminals are the cause of the problem. Do we take cars away from dui drivers? Does taking away their right to drive stop them from driving again.

    Criminals do not follow laws. They will not apply for permits or go through background checks. They steal. If we can find solutions that stop criminals that would be a big step in the right direction.

    Six states restrict or ban concealed carry of weapons and yet those states continue to have problems. The math tells you that if a criminal pulls a gun in one of the other 44 states he/she faces a good chance they will be me with opposing force. Those with concealed carry licences are trained and know the consequences of violating the rules much like drivers who are trained not to violate the rules of the road.

    Legislation will only confuse and complicate the issues. This type of dialogue will openly get the issues on the table and show how complex this subject is.

    Calling out names and offending people who are passionate law abiding citizens as being gunslingers will not bring about meaningful solutions.

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    1. Stopping criminals means enforcing laws we already have and not letting them out early on parole. Do the crime, do the time. But that costs money backs up the courts and overcrowds the prisons. So lets just enact some feel good legislation based on lies and it only effects the law abiding and we will just ignore the real problems because they are to hard and to costly to fix! Can you say plea bargain?

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      1. Agreed, Tim, stop spending billions to train police in Iraq and Afghanisan – when we left Iraq, they began to kill each other again. Afghanistan will be the same senario and everyone knows that. The Taliban will resume demeaning and killing women. How many more middle class American lives will be wasted to enrich arms manufactureres in this country supporting unwinnable Republican wars? Use the billions we will save to CRACK DOWN HARD on killers in our country. Put them to death rather than feeding them with my taxes.

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  7. I would Love to work at one of the schools as an armed Security Gaurd and the only reason I would not apply is because I’m 70 years old out of shape and honestly could not chase anyone if I had to. If I was younger I would apply ASAP regardless of pay I love kids and whether they belive it or not they need adults in their lives.

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  8. Disagree. There is big difference in a armed security guard and a 60 year old bank guard. I want ex-Military or young retired Police to be there. Just because there is a guard means that there is the chance of limiting the damage. To take all guns away means that only the bad people have weapons. There is no easy answer, but disarming decent law abiding citizens is pure stupidity.

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