9 Things You Didn't Know About the Second Amendment

[lostinblue 1,989]

9 Things You Didn't Know About the Second Amendment

1. The Second Amendment codifies a pre-existing right

The Constitution doesn't grant or create rights; it recognizes and protects rights that inherently exist. This is why the Founders used the word "unalienable" previously in the Declaration of Independence; these rights cannot be created or taken away. In D.C. vs. Heller, the Supreme Court said the Second Amendment “codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed ... this is not a right granted by the Constitution” (p. 19).

2. The Second Amendment protects individual, not collective rights

The use of the word "militia" has created some confusion in modern times, because we don't understand the language as it was used at the time the Constitution was written. However, the Supreme Court states in context, "it was clearly an individual right" (p. 20). The operative clause of the Second Amendment is “the right of the people to keep and bear arms shall not be infringed,” which is used three times in the Bill of Rights. The Court explains that "All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" (p. 5), adding “nowhere else in the Constitution does a 'right' attributed to “the people” refer to anything other than an individual right" (p. 6).

3. Every citizen is the militia

To further clarify regarding the use of the word "militia," the court states “the ordinary definition of the militia as all able-bodied men” (p. 23). Today we would say it is all citizens, not necessarily just men. The Court explains: “'Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else" (p. 9). Since the militia is all of us, it doesn't mean “only carrying a weapon in an organized military unit" (p. 11-12). “It was clearly an individual right, having nothing whatever to do with service in a militia" (p. 20).

4. Personal self-defense is the primary purpose of the Second Amendment

We often hear politicians talk about their strong commitment to the Second Amendment while simultaneously mentioning hunting. Although hunting is a legitimate purpose for firearms, it isn't the primary purpose for the Second Amendment. The Court states “the core lawful purpose [is] self-defense” (p. 58), explaining the Founders “understood the right to enable individuals to defend themselves ... the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury' (p.21). They conclude "the inherent right of self-defense has been central to the Second Amendment right" (p.56).

5. There is no interest-balancing approach to the Second Amendment

Interest-balancing means we balance a right with other interests. The court notes that we don't interpret rights this way stating “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all” (p.62-63). This doesn't mean that it is unlimited, the same as all rights (more on that below). However, the court states that even though gun violence is a problem to be taken seriously, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table" (p.64).

6. The Second Amendment exists to prevent tyranny

You've probably heard this. It's listed because this is one of those things about the Second Amendment that many people think is made up. In truth, this is not made up. The Court explains that in order to keep the nation free (“security of a free state”), then the people need arms: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (p.24-25). The Court states that the Founders noted "that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents" (p. 25). At the time of ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive" (p.25). The response to that concern was to codify the citizens' militia right to arms in the Constitution (p. 26).

7. The Second Amendment was also meant as a provision to repel a foreign army invasion

You may find this one comical, but it's in there. The court notes one of many reasons for the militia to ensure a free state was “it is useful in repelling invasions” (p.24). This provision, like tyranny, isn't an everyday occurring use of the right; more like a once-in-a-century (if that) kind of provision. A popular myth from World War II holds Isoroku Yamamoto, commander-in-chief of the Imperial Japanese navy allegedly said “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.” Although there is no evidence of him saying this, there was concern that Japan might invade during WWII. Japan did invade Alaska, which was a U.S. territory at the time, and even today on the West Coast there are still gun embankments from the era (now mostly parks). The fact is that there are over 310 million firearms in the United States as of 2009, making a foreign invasion success less likely (that, and the U.S. military is arguably the strongest in the world).

8. The Second Amendment protects weapons "in common use at the time"

The right to keep and bear arms isn't unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited” (p. 54). The Court upheld restrictions like the prohibition of arms by felons and the mentally ill, and carrying in certain prohibited places like schools and courthouses. What is protected are weapons "in common use of the time" (p.55). This doesn't mean weapons in common use “at that time,” meaning the 18th Century. The Court said the idea that it would is “frivolous” and 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" (p.8). The Court's criteria includes weapons in popular widespread use “that [are] overwhelmingly chosen by American society" (p. 56), and “the most popular weapon chosen by Americans” (p. 58).

9. The Second Amendment might require full-blown military arms to fulfill the original intent

The Court didn't rule specifically on this in D.C. vs. Heller, but noting that weapon technology has drastically changed (mentioning modern day bombers and tanks), they stated “the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large" (p. 55).

They further added that “the fact that modern developments [in modern weaponry] have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right" (p. 56). A full ruling has not been made, as this was not in the scope the court was asked to rule on in the D.C. vs. Heller case, but they left the door open for future ruling.

Husband, Father, Christian, Patriot, Conservative, Runner, Linux hobbyist. Lives in the Pacific Northwest & writes primarily about Second Ame...

http://www.policymic.com/articles/24557/9-things-you-didn-t-know-about-the-second-amendment

[I AM NOT THAT GUY 5,715]

What a bunch of #######!

[CarlosAndSveta 808]

How Fake 2nd Amendment History Kills

False history can kill, as the American people have seen again in the slaughter of 12 people working at the Navy Yard in Washington D.C. on Monday, when an emotionally disturbed gunman gained access to the military facility and opened fire, adding the site to a long list of mass-murder scenes across the United States.

Though the focus after the latest rampage has been on the need for better mental health detection and for better security at bases, the underlying story is again how easy it is for people in the United States, like the troubled Aaron Alexis, to obtain lethal weaponry – and how hard it is to keep guns away from dangerous individuals.

In that sense, the Navy Yard narrative is just one more bloody patch in the grim tapestry that stretches from Virginia Tech to Aurora to Newtown to hundreds of other locations where thousands upon thousands of innocent lives have been taken by gun violence in America.

But a key reason why the nation is frozen in a shocking paralysis, unable to protect even little children, is that the American Right has sold much of the country on a false history regarding the Second Amendment. Right-wingers and other gun-rights advocates insist that the carnage can’t be stopped because it is part of what the Framers designed.

Yet that is not and never was the actual history. When the First Congress passed the Second Amendment in 1789, the goal was to promote state militias for the maintenance of order in a time of political violence, potential slave revolts and simmering hostilities with both European powers and Native Americans on the frontiers.

The amendment was never intended as a blank check for some unstable person to massacre fellow Americans. Indeed, it defined its purpose as achieving “security” against disruptions to the country’s new republican form of government. The Second Amendment read:

“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.” In other words, if read in context, you would see that the Second Amendment was enacted so each state would have the specific right to form “a well-regulated militia” to maintain “security,” i.e. to put down armed disorder.

In the late Eighteenth Century, the meaning of “bearing” arms also referred to a citizen being part of a militia or army. It didn’t mean that an individual had the right to possess whatever number of high-capacity killing machines that he or she might want. Indeed, the most lethal weapon that early Americans owned was a slow-loading, single-fired musket or rifle.

No Anarchists

And, the Framers of the Constitution were not some anarchists who wanted an armed population so people could overthrow the government if they weren’t happy with something. Indeed, one of the crises that led to the Constitution was the inability of the old system under the Articles of Confederation to put down the Shays’s Rebellion in western Massachusetts in 1786-87.

The Framers – people like George Washington, James Madison, Alexander Hamilton and Gouverneur Morris – were the Establishment of the day. They also recognized how fragile the nation’s independence was and how novel was the idea of a constitutional republic with democratic elections. They were seeking a system that took political action that reflected the will of the people, yet within a framework that constrained the passions of democracy.

The whole idea of the Constitution – with its mix of voting, elected representatives and checks and balances – was to create a political structure that made violence unnecessary. As the Preamble states, two key goals were to “promote the general Welfare” and to “insure domestic Tranquility.” So, the Framers weren’t encouraging violent uprisings against the republic that they were founding. To the contrary, they characterized violence against the constitutional system as “treason” in Article IV, Section 4.

And one of the first uses of the new state militias formed under the Second Amendment and the Militia Acts was for President Washington to lead a federalized force of militiamen against the Whiskey Rebellion, a tax revolt, in western Pennsylvania in 1794.

Though it’s true that many Americans owned a musket or rifle in those early years especially on the frontier, regulations on munitions were still common in cities where storing of gunpowder, for instance, represented a threat to the public safety. As the nation spread westward, so did common-sense restrictions on gun violence. Sheriffs in some of the wildest of Wild West towns enforced gun bans that today would prompt a recall election financed by the National Rifle Association.

This history was well understood both by citizens and courts. For generations, the U.S. Supreme Court interpreted the Second Amendment as a collective right, allowing Americans to participate in a “well-regulated Militia,” not as an individual right to buy the latest weaponry at a gun show or stockpile a military-style arsenal in the basement.

False Narrative

However, in recent decades – understanding the power of narrative on the human imagination – a resurgent American Right rewrote the history of the Founding era, dispatching “researchers” to cherry-pick or fabricate quotes from Revolutionary War leaders to create politically convenient illusions. [see, for instance, Steven Krulik's compilation of apocryphal gun quotes.]

Among the false narratives was the one about the Second Amendment, which the Right (and some on the Left) transformed into a supposed device by which the Framers authorized armed rebellion against the constitutional Republic. Rather than people who believed in the rule of law and social order, the Framers were contorted into mad radicals who wanted citizens to be empowered to shoot police, soldiers, elected representatives and government officials.

These “scholars” love to cite provocative comments by Thomas Jefferson, who was not even a participant in drafting the Constitution and the Bill of Rights because he was the U.S. representative in France at the time. But these revisionists still will quote Jefferson in a 1787 letter criticizing the Constitution for its commander-in-chief provisions. Jefferson argued that violence, like the Shays’s Rebellion, was to be welcomed. He declared that “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

It is ironic, however, that Jefferson was never willing to risk his own blood as that “natural manure.” During the Revolutionary War when traitor Benedict Arnold led a force of Loyalists against Richmond, Jefferson, who was then Virginia’s governor, declined to rally the state militia in defense of the capital but rather fled for his life. Later, when British cavalry approached Charlottesville and his home of Monticello, Gov. Jefferson again took flight.

Despite his personal cowardice, Jefferson had a lust when it came to others shedding blood. He also was eager for Virginia to have a state militia of armed whites to crush possible black slave rebellions, another prospect that terrified him.

As a slaveholder and a pseudo-scientific racist, Jefferson surely did not envision blacks as having any individual right to own guns themselves or to fight for their own liberty. Reflecting on blacks who fought bravely in the Revolution, Jefferson concluded that their courage was an illusion resulting from their intellectual inability to recognize danger.

Yet, whatever one thinks of Jefferson’s racism and cowardice, it’s a historical error to cite Jefferson in any way as speaking definitively about what the Framers intended with the Constitution and the Bill of Rights. He was not directly involved in either.

Still, this false history was advanced by the American Right in the last half of the Twentieth Century as a kind of neo-Confederate call to arms, with the goal of rallying whites into a near-insurrectionary fury particularly in the South but also in rural areas of the North and West. Many fancied themselves an armed resistance against the tyrannical federal government.

Southern whites brandished guns and engaged in violence to resist the civil rights movement of the 1950s and 1960s, when the federal government finally stepped in to end Jim Crow laws and racial segregation. In the 1990s, “citizens militias” began to pop up in reaction to the election of Democrat Bill Clinton, culminating in the Oklahoma City bombing of 1994.

Winning the Court

While designed primarily for the weak-minded, the Right’s faux Founding history also had an impact on right-wing “intellectuals” including Republican lawyers who worked their way up through the federal judiciary under Ronald Reagan, George H.W. Bush and George W. Bush.

By 2008, these right-wing jurists held a majority on the U.S. Supreme Court and could thus overturn generations of legal precedents and declare that the Second Amendment established an individual right for Americans to own guns. Though even these five right-wing justices accepted society’s right to protect the general welfare of the population through some gun control, the Supreme Court’s ruling effectively “validated” the Right’s made-up history.

The ruling created a political dynamic in which even liberals in national politics, the likes of Barack Obama and Joe Biden, had to genuflect to the supposed Second Amendment right of Americans to parade around in public with guns on their hips and high-powered semi-automatic rifles slung over their shoulders.

As guns-right activists struck down gun regulations in Congress and in statehouses across the nation, their dominant argument was that the Second Amendment offered no leeway for restrictions on gun ownership; it’s what the Framers wanted.

So, pretty much any unstable person could load up with a vast killing capacity and slouch off to a bar, a work place, a church or a school – even an elementary school – and treat fellow Americans as targets in a violent video game. Somehow, the right to life, liberty and the pursuit of happiness was overtaken by the “right” to own an AR-15 with a 30-or-100-bullet magazine.

When right-wing politicians talk about the Second Amendment now, they don’t even bother to include the preamble that explains the point of the amendment. The entire amendment is only 26 words. But the likes of Sen. Ted Cruz, R-Texas, apparently find the preamble inconvenient because it would undercut the false storyline that they foist on uneducated Americans. So they just lop off the first 12 words.

Nor do Cruz and his fellow Tea Partiers explain to their followers what the Framers meant by “bear arms.” The phrase reflected the reasoning in the preamble that the whole point was to create “well-regulated” state militias to maintain “security,” not to free up anybody with a beef to kill government representatives.

This bogus narrative of the Framers seeking to encourage violence to subvert the peaceful and orderly process that they had painstakingly created in Philadelphia in 1787 also has been pushed by prominent right-wingers, such as radio host Rush Limbaugh and Fox News personality Andrew Napolitano.

After last December’s massacre of 20 children and six educators in Newtown, Connecticut, Napolitano declared: “The historical reality of the Second Amendment’s protection of the right to keep and bear arms is not that it protects the right to shoot deer. It protects the right to shoot tyrants, and it protects the right to shoot at them effectively, with the same instruments they would use upon us.”

The clear message from the Right has been that armed Americans must confront the “tyrannical” Barack Obama – the twice-elected President of the United States (and the first African-American to hold that office) – especially if he presses ahead seeking commonsense gun restrictions.

Which brings us back to the Navy Yard massacre in Washington D.C. It has quickly and quietly taken its place among the other mass slaughters that can’t be stopped because the Right’s powerful propaganda apparatus has sold millions of Americans on the dangerous – and false – notion that the Framers of the U.S. Constitution wanted it this way.

These modern “revolutionaries” have been persuaded that they are channeling the intent of the Framers who supposedly saw armed uprisings against the legally constituted U.S. government as an important element of “liberty.” But that belief is not the historical reality. Indeed, the reality is almost the opposite.

http://www.truth-out.org/opinion/item/18959-how-fake-2nd-amendment-history-kills

[Danno 1,228]

What a bunch of #######!

why do you hate our system so much?

[I AM NOT THAT GUY 5,715]

why do you hate our system so much?

That is not our system, nor was it ever intended to be.

[Mr. Big Dog 10,747]

That is not our system, nor was it ever intended to be.

word

[GandD 5,966]

Folks the constitution is what we want it to be. That's what the founders gave us. The will of the people governs, not a document. I really think you guys missed the point of the constitution. The point was to not be ruled anymore. You guys would replace the king with a document.

[The Nature Boy 4,224]

That's #######--Word ETC

Man they proved you wrong

LOL

Word

NOT

[Mr. Big Dog 10,747]

Folks the constitution is what we want it to be. That's what the founders gave us. The will of the people governs, not a document. I really think you guys missed the point of the constitution. The point was to not be ruled anymore. You guys would replace the king with a document.

You mean the Constitution is living, breathing document? You better not tell anyone.

[The Nature Boy 4,224]

You mean the Constitution is living, breathing document? You better not tell anyone.

The constitution is not a living breathing document. That is utter hoarse #######...That's code talk for...Well yes that is unconstitutional but just ignore it

My favorite is" well our forefathers could never have envisioned this" That is correct...That is why they were smart enough to give us a way to amend it

[Pooky 3,867]

You mean the Constitution is living, breathing document? You better not tell anyone.

It's only that if one or other of the political parties doesn't want to use it to beat the other around the head for supposedly trying to circumvent it.

[Mr. Big Dog 10,747]

The constitution is not a living breathing document. That is utter hoarse #######...That's code talk for...Well yes that is unconstitutional but just ignore it

My favorite is" well our forefathers could never have envisioned this" That is correct...That is why they were smart enough to give us a way to amend it

If that was true, then the Supreme Court would never overturn a decision it has previously made. Because without the Constitution being a living, breathing document, barring the Constitution having been amended, once something is found to constitutional or unconstitutional, that would be the end of the debate. And yet, there's a fairly rich history of the Supreme Court overturning previous decisions absent an amendment to the Constitution. How can that be?

[I AM NOT THAT GUY 5,715]

I am an originalist. Too bad the gun nutters are not. There is nothing in the Constitution about taking arms against the legitimately elected government. There is a section that allows Congress to appoint the the President, acting as head of the Executive, to throw such people in deep, dark holes, until such time as he, or Congress, decides to give them due process.

U.S.The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Constitution - Article 1 Section 9

Notice it says "privilege", not right.

[I AM NOT THAT GUY 5,715]

If that was true, then the Supreme Court would never overturn a decision it has previously made. Because without the Constitution being a living, breathing document, barring the Constitution having been amended, once something is found to constitutional or unconstitutional, that would be the end of the debate. And yet, there's a fairly rich history of the Supreme Court overturning previous decisions absent an amendment to the Constitution. How can that be?

There is the principle of stare decisis. The SCOTUS is reluctant to ignore the decisions of previous Courts, for good reason: It would be chaos without a long established precedence to refer to.

[Mr. Big Dog 10,747]

There is the principle of stare decisis. The SCOTUS is reluctant to ignore the decisions of previous Courts, for good reason: It would be chaos without a long established precedence to refer to.

Yes, there is a healthy reluctance to ignore previous decisions but previous decisions are still overturned from time to time.