September 30, 2020

Second Amendment Analysis

Our country is facing a Constitutional crisis that is putting everyone in jeopardy. There is a movement underway in this nation to disregard the second amendment. This movement is attempting to pressure our law makers in to denying American citizens their rights. I find this very troubling and frankly it scares the hell out of me. If successful with denying this right I wonder what right will go next.

Second Amendment

Our country is facing a Constitutional crisis that is putting everyone in jeopardy. There is a movement underway in this nation to disregard the second amendment. This movement is attempting to pressure our law makers in to denying American citizens their rights. I find this very troubling and frankly it scares the hell out of me. If successful with denying this right I wonder what right will go next.

Defining the Second Amendment

The Second Amendment has 27 words none of the words are hard to understand or define. A large part of the American people are very confused by what it says. Some Supreme Court Justices, confused by its meaning, voted against the individual rights this amendment protects.

The Second Amendment is:

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.

These 27 words are in the middle of a very heated debate. Both people that are for gun-control and those opposing gun-control are often confused by the meaning behind these 27 words. In an effort to bring clarity I will investigate the meaning of each of the words, the history behind these words, the context of these words, the judicial opinions concerning these words and will end these discussions with what I think these words mean and the intent behind these words.

Originally I was going to use the dictionary and post the definition of each word. I think that would be rather dry reading and many people would give up somewhere around regulated. Instead I will use synonyms for some of the words. I will not use synonyms for words like a, the, and, or, be, etc. With my focus on the other words at the end, I will use these synonyms to restate the Second Amendment in an attempt to clarify its meaning.

What the Words Mean

WELL (satisfactorily, nicely, correctly, properly, fittingly, suitably, appropriately; decently, fairly, kindly, generously, honestly)

REGULATED (supervised, policed, monitored, checked, checked up on, be responsible for; controlled, managed, directed, guided, governed)

MILITA (citizen soldiers, commandos, reserves, soldiers, trainband, fighters, force, military, minutemen, rangers)

NECESSARY (obligatory, requisite, required, compulsory, mandatory, imperative, needed, de rigueur; essential, indispensable, vital)

SECURITY (safety, freedom from danger, protection, invulnerability, safety measures, safeguards, surveillance, defense, protection)

FREE (independent, self-governing, self-governed, self-ruling, self-determining, nonaligned, sovereign, autonomous; democratic)

STATE (country, nation, land, sovereign state, nation state, kingdom, realm, power, republic, confederation, federation)

RIGHT (entitlement, prerogative, privilege, advantage, due, birthright, liberty, authority, power, license, permission, dispensation, leave, sanction, freedom)

PEOPLE (citizens, subjects, electors, voters, taxpayers, residents, inhabitants, (general) public, citizenry, nation, population, populace)

KEEP (retain, hold on to, keep hold of, retain possession of, keep possession of, not part with; save, store, conserve, put aside, set aside)

BEAR (carry, bring, transport, move, convey, take, fetch, deliver, tote, lug)

ARMS (weapons, weaponry, firearms, guns, ordnance, artillery, armaments, munitions)

SHALL (have (to), must, need, ought (to), should, will)

NOT (nay, nix, never)

INFRINGE (restrict, limit, curb, check, encroach on; undermine, erode, diminish, weaken, impair, damage, compromise)

Sometimes the best way to understand what a statement is saying, besides define the words in the statement, is to replace the words with synonyms. If we use synonyms and restate the statement that is the second amendment, we would see that it says:

A properly supervised civilian military force being paramount to a defense of an independent federation, the freedom to retain and carry weapons must never be encroached.

When we look at the Second Amendment using synonyms to replace the words that it says the meaning becomes a lot clearer.  In order to make the understanding of this statement even clearer we need to look at the history when this amendment was enacted and why it was thought to be important.

The History behind the Second Amendment

The year is 1789 and only 13 years since the United States of America declared its independence.  We are recovering from the Revolutionary war and we are still working to become a nation. The Constitution had just been ratified because of the Massachusetts Compromise.  There are several States leery of ratifying the Constitution because they believe not enough was done to protect individual rights. Some of the leaders of this movement, to better protect individual rights, were John Hancock and Samuel Adams. While they saw the need for the individual States to join together as a single union they were worried.  These 2 leaders negotiated a measure to be introduced in the first congress better protecting the rights of the individual.

James Madison a member of the newly formed House of Representatives took on the task of drafting the protection of rights several States were requesting and felt as necessary to safeguard individual liberties.  He petitioned the new House of Representatives multiple times to introduce the resolutions that would become known as the Bill of Rights (the first ten Amendments of the Constitution). James Madison was successful and introduced a list of numerous Amendments that the States were requesting. The House of Representatives eventually passed 17 of the original Amendments and sent that list to the United States Senate.

Of the 17 Amendments that the United States House of Representatives had approved the United States Senate only approved 12. In August of 1789 this list of Amendments were sent to the States for their approval and ratification to be added to the Constitution. Ten of the 12 Amendments were quickly ratified by the States with Virginia being the last State to ratify them on December 15, 1791.

As we can see from history the Constitution of the United States was in jeopardy.  Several States threatened not to ratify the Constitution and join the Union because of fear that the Constitution did not do enough to protect individual liberties. They didn’t fear for the State but they did fear government.  They were going to insure the individual liberties were protected at all costs, putting the young nation at risk.

One of the rights these States were fighting for is the Second Amendment of the Constitution of the United States. Why did our founding fathers feel that the Second Amendment was important to include in the Constitution as a part of the Bill of Rights? To determine this let’s look at what the founding fathers had to say on the matter of the Second Amendment.

Quotes relating to the Second Amendment

Thomas Jefferson“No free man shall ever be debarred the use of arms.”
– Thomas Jefferson, Virginia Constitution, Draft 1, 1776

“I prefer dangerous freedom over peaceful slavery.”
– Thomas Jefferson, letter to James Madison, January 30, 1787

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
– Thomas Jefferson, letter to James Madison, December 20, 1787

“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
– Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776

“The Constitution 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.”
– Thomas Jefferson, letter to John Cartwright, 5 June 1824

Benjamin Franklin“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin, Historical Review of Pennsylvania, 1759

George Mason“To disarm the people…[i]s the most effectual way to enslave them.”
– George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, June 14, 1788

“I ask who are the militia? They consist now of the whole people, except a few public officers.”
– George Mason, Address to the Virginia Ratifying Convention, June 4, 1788

Noah Webster“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
– William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

“This may be considered as the true palladium of liberty…. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
– St. George Tucker, Blackstone’s Commentaries on the Laws of England, 1803

“The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one-half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become a prey to the strong. The history of every age and nation establishes these truths, and facts need but little arguments when they prove themselves.”
– Thomas Paine, “Thoughts on Defensive War” in Pennsylvania Magazine, July 1775

These are some pretty powerful words and they show us that the founding fathers intent with the Second Amendment was that all citizens be able to defend themselves. They knew that government could be swayed by temptation and could very easily oppress the individual if important safeguards were not put into place. The most important safeguard was the Second Amendment. This was the people’s tool to prevent government from overstepping. The founding fathers intended on the people to be able to defend and if necessary overthrow the government that was no longer acting in the people’s interest and only serving themselves. In order for the people to be able to do this, they must be able to have the ability to own the same weaponry that the government has.

The context of the Second Amendment

To fully understand the Second Amendment we must first understand the structure of the sentence.  This is a complex sentence composed of 27 words. When we first read it we see the words “A well regulated militia, being necessary to the security of a free State,” These words make a part of a sentence called a prefatory clause. You may ask what is a prefatory clause?  Let us dig a little deeper and figure this out as it is crucial to our understanding of the Second Amendment.

The word prefatory, an adjective defined as serving as an introduction. So what is a clause?  Clause is a noun and can be defined in one of two ways the first definition is a separate section of a legal document (as a statute or contract or will) the second definition is (grammar) an expression including a subject and a predicate but not constituting a complete sentence. Which definition is the correct one in this instance?

Do the words “A well regulated militia, being necessary to the security of a free State, make a complete sentence? Does this phrase have a subject?  Yes, the subject of the phrase is”well regulated militia” can the rest of the phrase complete a sentence?  It can but what is the action part of the sentence. It describes a necessity.  Does it provide an action that government is to take or does it limit an action of the government?  I do not think that phrase meets any of those conditions.  If we further look at the other Amendments in the Bill of Rights, we see they all have some sort of restriction or requirement placed on the government.  The first part of this sentence does not do that.

I think that in this case the word clause is defined in the second way and this a grammatical usage for clause and not a legal use. This doesn’t mean that this part of the Second Amendment can be disregarded but it means that this part of the Second Amendment is not the focus of what is being said. I refer to a Supreme Court decision that further clarifies this.

SUPREME COURT OF THE UNITED STATES
DISTRICT OF COLUMBIA
et al. v. HELLER

certiorari to the united states court of appeals for the District of Columbia circuit
No. 07–290. Argued March 18, 2008—Decided June 26, 2008

  1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

When we look at this and understand the reason behind the writing of the Constitution and the push for the Bill of Rights we can conclude that this initial phrase is a justification for the need of the second part of this sentence, “the right of the people to keep and bear Arms shall not be infringed.” This is the operative clause of the sentence. This is the operative clause.  It restricts what government is allowed to do. To conclude anything else is to disregard the intent and meaning of the rest of the Bill of Rights. If we look at the other 9 Amendments we see that they pertain to individual rights and not to rights of states or of groups.

The exception of this is the Tenth Amendment which says,

“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 amendment reserves power to the States and the people but does not speak of rights it speaks of the limits of power within the federal government. If we look at the other 8 Amendments they are clearly for individual rights so to think that the Second Amendment is defining State rights is counter to the other rights or it reserves those rights to the States and this is not the intent or purpose behind the Bill of Rights.

This amendment reserves power to the States and the people but does not speak of rights it speaks of the limits of power within the federal government. If we look at the other 8 Amendments they are clearly for individual rights so to think that the Second Amendment is defining State rights is counter to the other rights or it reserves those rights to the States and this is not the intent or purpose behind the Bill of Rights.

The Supreme Court and the Second Amendment

As we work to determine the meaning behind the Second Amendment, it is prudent that we look at how the Supreme Court of the United States has interpreted the Second Amendment.

United States v. Cruikshank, 92 U.S. 542 (1875)

The first case ruled on by the Supreme Court was United States v. Cruikshank, 92 U.S. 542 (1875). This was a case relating to the Ku Klux Klan depriving freed slaves basic rights.  This case ruled on many aspects of the Constitution and its Amendments for this discussion we will limit it to rulings regarding the Second Amendment. The court ruled:

“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 Amendments 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.”

Here the Court ruled that the Second Amendment is not what granted the people the right to bear arms. They recognized that the right to bear arms is a fundamental right and is not dependent on the Constitution. The Court also ruled that they did not have jurisdiction in cases of citizens denying other citizens of their rights granted or secured by the Constitution and that this was up to the States to protect the fundamental rights of its citizens.

Presser v. Illinois, 116 U.S. 252 (1886)

The next case Presser v. Illinois, 116 U.S. 252 (1886) is related to the meaning if the Second Amendment relating to militias and individuals. In the opinion the Court wrote,

“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.”

Later in the opinion of the Court it stated,

“The provision in the Fourteenth Amendment to the Constitution that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States.”

In this case the Court specifically upheld that the Second Amendment was a right of the individual and not limited to militias or military organizations.

United States v. Miller, 307 U.S. 174

The next time a case came before the Supreme Court for a ruling on the Second Amendment was in 1939 United States v. Miller, 307 U.S. 174. This was a case about the transportation of a 12-gauge shotgun with a barrel less than 18 inches long. In this case the Court opinion was:

“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” The case cited an earlier ruling as precedent “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.”

Essentially stating that weapons that are a part of ordinary military equipment or that can contribute to the common defense are weapons protected under the Second Amendment.

District of Columbia v. Heller, 554 U.S. 570 (2008)

The next case involving the Second Amendment was District of Columbia v. Heller, 554 U.S. 570 (2008). This case was about the District of Columbia banning handguns making it illegal to carry an unlicensed handgun. Heller had applied to register a handgun to keep at home and the District refused the registration. Heller filed suit citing the Second Amendment.

The Court’s opinion stated:

“1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28. (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.”

The court ruled that 1. The Second Amendment applied to individual rights, 2. That States could not deny this right to citizens, and 3. That the Courts interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

McDonald v. City of Chicago, 561 U.S. 742 (2010)

In the case of McDonald v. City of Chicago, 561 U.S. 742 (2010) the Supreme Court ruled that the Second Amendment was incorporated against state and local governments through the Due Process Clause of the Fourteenth Amendment.

“After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments.

In its opinion the Court ruled:

“The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.” Later in its opinion the Court stated, “Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home.” and, “A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.” The court further states, “In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31.” and, “The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721.”

With this ruling the Supreme Court affirms that the Second Amendment is as applicable to the state and local governments as it is for the federal government as a result of the Fourteenth Amendment. They affirmed the Second Amendment was not limited to militias but protects an individual’s right to self-preservation.

Caetano v. Massachusetts, 577 U.S. ___ (2016)

In the case Caetano v. Massachusetts, 577 U.S. ___ (2016) The Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining:

“whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment,” that stun guns are “dangerous per se at common law and unusual,” and that “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”

The U.S. Supreme Court, per curiam, vacated, reiterating that

“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that it has rejected the proposition “that only those weapons useful in warfare are protected.”In its opinion the Court stated, “The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008)

and that this

“ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .”

Essentially saying that all arms that constitute bearable arms are protected under the Second Amendment including modern arms and laws that infringe on this right are unconstitutional.

As we can see, the Supreme Court has recognized that 1.  All instruments considered as bearable arms fall under the protection of the Second Amendment.  2. These protections oppose laws enacted by state or local governments that seek to regulate or forbid bearing of these arms. 3. The Second Amendment extends to modern arms and not just the ones that were in common use at the time of the Second Amendments adoption in to the Constitution.

Conclusion

The Second Amendment never intended as a a right of the State or a right reserved for Militias, but a right of the individual.  It is a fundamental right that everyone has with the right of self-preservation and self-defense.  Our founding fathers found it wise to protect our fundamental rights by incorporating the Bill of Rights in to the Constitution of the United States.  They further deemed that the individual needed to have at their disposal a means with which to prevent and if necessary overthrow tyranny.

Our founding fathers were wise enough to know that during times of national tragedy that a portion of the people would be willing to sacrifice some of their rights for a false sense of security.  To protect against this the founding fathers set out to protect these rights by adding them to the Constitution.

Our nation finds itself at a point when a group of Americans is calling for us to give up some of our rights in a misguided effort for security.  The right they are attempting to deny us is the very right that offers the security that they are seeking.  They justify the purpose behind trying to revoke this fundamental right because of the actions of a few.  We have to stand firm and work diligently to prevent this denial of our fundamental rights resulting in a loss of our liberty.

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