We know this not only from the plain language of the amendment itself which contains words and meanings that seem to be too much to understand for current politicians and lay people, but also from the fact that the original debate at the constitutional convention in 1789 that created the second amnedment was recorded and written down, at times verbatim and that transcript exists, is in the Library of Congress and can be read by anyone. It is absolutely clear from these debates, along with a basic understanding of the English language, that the clear intent of the Founders who wrote the amendment was to solely to give the states the right to keep and maintain their own regular militias and guaranteed this states the right to have whatever weapons of war they wished. It had nothing to do with guns. Because the word "arms" has nothing to do with guns. In fact the creation of the word itself predates the invention of the gun by more than a thousand years. The word "arms" meant in 1789 what it means today, what it meant during the cold war, and what it meant in 789, It means weapons of war. Implements of warfare. All implements of warfare. And in the case of the congress that created the second amendment, that was not just about guns, but included cannon, cannon balls, powder, bayonets, rockets, even warships and forts. That is the meaning of the word "arms" and giving the states the right to keep and use those arms was the sole purpose and intent of the second amendment, And every Supreme Court in 224 years decided that way.
The lone exception to this 224 year Supreme Court precedent were the current five conservative members of the Supreme Court who were the 5-4 majority in a Court decision that is clearly the most constitutionally, judicially, and intellectually corrupt, dishonest, decision since the Dred Scott decision in 1859.
That the second amendment has nothing to do with an individuals right to own a gun is not a matter of opinion . It is an absolute irrevocable inarguable and easily provable fact as American history and the doctrine of Original Intent , the cornerstone of conservative jurisprudence, easily proves.
This is not some liberal, anti-gun interpretation of the Second Amendment. Former Chief Justice of the Supreme Court Warren Burger, a conservative appointed to Chief Justice by Richard Nixon, said of the idea that the second amendment conferrs an individual's right to own a gun, " the second amendment has been the subject of one of the greatest peices of fraud, I repeat the word fraud, ever perpetrated on the American public by an interest group in my lifetime."
The interest group he was referring to obviously, is the NRA.
Burger also said in 1992," the second amendment doesn't guarantee the right to have firearms at all".
In 1990, Burger wrote another article on the Second Amendment, referring to " the carnage" taking place with guns in America that is even more eerie to read now in light of the recent shooting at Sandy Hook Elementary School, the massacre in Aurora, the shooting at the Oregon mall and that Burger wrote his piece 22 years ago.
What makes the recent 5-4 Supreme Court decision so intellectually and constitutionally dishonest is that it flies in the face of and ignores the very constitutional philosophy embraced and touted by conservatives -- original intent -- a philosophy conservatives use to vilify liberal justices who stray from it with cries that they are "legislating from the bench" or finding or inventing rights in the constitution that don't exist. Which is exactly what the Roberts court did with their recent ruling on the second amendment.
The doctrine of Original Intent is a precept which states that where the intent of the founders who wrote the constitution is clear, where the meaning of their language is clear, it is that intent and purpose that must be applied.Knowing the true and only intent of the Founders in creating the second amendment, it is impossible to find that the 2nd amendment applies to an individual right to own a gun.
During those constitutional debates that created the second amendment which took place over a period of three weeks in 1789, not once at any time did the issue of an individual's right to own a gun even come up for discussion. It was in no way ever part of the debate.
When reading the amendment, or any part of the constitution, the first thing to understand is that it was written by and ratified by people who had a command of the English language and a precison in using it that is far beyond anything we see in congress or the media for that matter today. People have referred to Jefferson's words in the Declaration and the preamble to the constitution as American scripture because the words still stir people and have resonance even today. These people were a lot smarter than anyone currently in government.
Understanding this, and how careful and precise they were with words,understanding that they meant every word they wrote, it's useful to know that the 2nd amendment, which is one long run on sentence, was re-written seven times and all seven versions are also in the Library of Congress. What's striking about all seven versions is that they are all virtually the same except for a word change here and there, showing that the people who wrote and constructed it wanted to be absolutely sure that their intentions were clear and specific and that every word meant what they intended.
The amendment reads: " 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".
It's clear that the subject both of the sentence and the amendment is "a well regulated militia". Not an individual's right to own a gun.
That's because the clearly stated purpose of the amendment, clearly stated in the debates by the congress that created it, was to give the states the unlimited right to create and maintain their own well-regulated, well-drilled militias as a counter measure against the threat posed by a standing federal army. The amendment was created to give the states their own armies. "Well regulated" meant a militia made up of well-drilled and well trained soldiers and a militia that had a clear command structure. We know all this not only from an understanding of the english language but also from the transcripts of the debates which began the creation of the second amendment when a representative from North Carolina stood up and offered this as a proposition to congress: " The federal government maintaining a standing army is a threat to liberty".
It was a proposition all in congress agreed to. What came next was what to do about it.
The first solution offered, according to the transcripts of the debates, was to ban the federal government from having a standing army at all. That was voted down as unwise. The next solution offered was to allow the federal government to organize an army but only after being authorized by a two-thirds vote of congress. That was defeated as well as being impractical since by the time congress voted to allow the creation of a federal army to defend against an invasion or threat it would probably be too late.
The solution that finally passed was giving each state the absolute and unalterable and unlimited right to have their own organized, well drilled, "well regulated" and well armed militias that were capable of waging war on the same level as a federal army and that could not be restricted or impeded in any way.
Understanding this last point is crucial because there are words in the 2nd amendment whose meaning most people think they know, but don't. And the most crucial of these are the words, " the right to keep and bear arms".
Most people regardless of political persuasion seem to believe with certainty that those words have something to do with an individual keeping a gun in his house. Those words means none of that. There are people who wrongly think that because the revolution was first started with militia men who brought their own guns to the fight, that the second amendment is conferring a right to the indivdual to keep his own gun to bring to the fight. "The right of the people to keep and bear arms" means none of that. If that's what it meant the people who wrote and ratified " We hold these truths to be self evident that all men are created equal", could have written, "the right of the individual to keep and own a firearm for his own defense and that of the state" could have said just that. They didnt. As pointed out before, the word "arms" does not mean guns. The "arms race' that took place during the cold war between the U.S. and Soviet Union was not about which country had more people with guns in their closets. It had to do with which country and more nuclear war heads and the missiles to deliver them. There is a world of difference between an "arms dealer" and a "gun dealer". An arms dealer sells Katusha rockets, RPG's surface to air missiles and shoulder fired missile launchers along with Ak-47's. They do not sell Glocks or hunting rifles. The word "arms" in 1789 when the constitution was written meant the same thing then as it meant in the 8th century and the same thing it meant in the 20th century and the same thing it means now-- "arms" means weapons of warfare. Not the gun you have in your drawer. Not the gun in your closet. Not the gun under your bed or the gun you take hunting or for target practice. "Arms" meant in 1789 as it means now and has always meant, weapons of war. Any and all weapons of war.
The term "to bear arms" in 1789 as used and understood by the founders also had a very specific meaning and doesn't in any way mean an individual using a gun for their own lawful purposes. "To bear arms" doesn't mean to go hunting or target shooting. It doesn't mean to shoot a burglar in self defense or to keep a gun in your glove compartment or to show off your gun to your neighbor. "To bear arms" meant only one thing to the founders because there was only one true meaning of the term -- "to bear arms" meant to go to war.And to engage in battle. To bring to bear the force of arms.
When Paul Revere rode through the Massachusetts countryside shouting " To arms! The British are coming", he meant it was time to go to war and engage in battle. He wasnt telling the colonists only to grab their muskets, but to assemble the cannon and the powder and bring it to bear.That is the meaning of "to bear arms" and that is the meaning of the second amendment's " right to bear arms".
The 2nd amendment also gave the states the absolute and unlimited right to keep any weapons of war they wished without interference or limitiation by any future federal government and the right to use those weapons in the hands of their "well regulated" militias if necessary. It doesnt mean to simply own and use a gun.
" The right of the people", is also often distorted or miscontrued. "The people" does not mean an individual. It is how the constitution refers to states rights and uses the collective term " the people" to indicate a states right, not an individual right. Which is why the preamble to the Constitution begins " We the People of the United States". When the constitution refers to an individual right, it uses the word "person". As in "a person's right" to be secure in their homes and their effects in the 4th amendment ban on illegal search and seizure. And the 5th amendment right against self incrimination which states: "No person shall be compelled to be witness against himself".
The Second Amendment clearly had nothing to do with an individual's right to own a gun. A right to own a gun was never even discussed during the debates. And why would it be? In 1789 America, almost everyone owned guns. There was nothing controversial about it. Owning a gun was as common as owning an ax or a horse or a hammer. People used guns to hunt for food. They used guns to protect livestock from predators. And they were used for self defense especially against Indian attacks. Owning a gun in 1789 America was as controversial as owning a barbeque grill in Scarsdale. Does anyone really think the greatest minds in the history of self-government sat around for three weeks debating, re-writing seven times and adding to the Bill of Rights an amendment giving people the right to own a barbeque grill?
The recent Supreme Court decision by the five conservative justices not only betrayed publicly stated conservative philosophy in order to bring about a poltically desireable decision, but Sam Alito, in his written opinion for the majority incomprehensibly, didnt even use the constitution as the basis for his opinion. Alito cited"Blackstone's Rights of Englishmen" in his opinion, a document not only non American in origin, but written more than 100 years before the creation of the country. Had liberal justices ruled on a constitutional issue by using a document other than the constitution, and one not even American in origin and written before the country even existed, conservative members of congress like Orin Hatch, Jeff Sessions or Lindsay Graham would be screaming for their impeachment.
The five conservative judges who ruled for the first time in American history that the 2nd amendment applied to individuals, may also have opened a Pandora's box they may regret. That box is the infringement clause which states that the right granted in the 2nd amendment "shall not be infringed" meaning it cannot be reduced, modified, altered, obstructed or limited in any way. It is specifically an unlimited right which was created as a protection against the power of a federal army in the hands of a tyrant. Its whole purpose was to give the states the unlimited right to have their own armies and weapons of war capable of standing up against a federal army. To allow a future congress to limit or reduce that right in any way would defeat the whole purpose of the amendment.
Consequently if the 2nd amendment is to apply to individuals, then, based on what the amendment literally says, every gun law in the United States would be unconstitutional since it "infringes" or limits in some way the right enumerated in the 2nd amendment. You can't have it both ways. That Justice Scalia tried to modify and backtrack on the court's ruling by saying, " Like most rights, the right secured by the Second Amendment is not unlimited" shows just how corrupt and dishonest the 5-4 ruling really was. Because the amendment makes clear in plain English, that it is in fact unlimited, and that no limits may be placed on it even in the future as the words "shall not" make clear. It would make no sense to give the states the right to protect itself against an unlawful use of force by a federal army sent by a tyrant and at the same time stifle it or insure its defeat with limitations that would put it at a disadvantage.
It seems that so far even the NRA doesnt want to push their luck by going so far as to say that based on the recent court ruling all gun laws are unconstitutional, but they would be well within the ruling of the Roberts court to do so. "Shall not be infringed" means what it says. Not what Scalia says. But what the constitition says. But congress or any other legislative body can close the Pandora's box by doing the obvious -- ignore the Supreme Court ruling and pass whatever gun laws they wish. Then, if someone wants to challenge it and take it back to the Supreme Court, they can do so.The Court would likely welcome a chance to clairify and modify and undo the potential damage caused by their ruling.
The fact that there is now a debate about stricter gun laws is proof enough that on some level people understand the second amendment has nothing to do with an individual right to own a gun. If it did there would be no debate about gun laws because there wouldn't be any.
With the country reeling from the horrors of the school shooting in Newtown, there is a well publicized resurgence in a desire to pass new and stricter gun laws, perhaps banning certain kinds of automatic weapons, strengthening the criteria for purchasing weapons ( there is a lot that can be done in this area to reduce obtaining weapons illegally) or banning certain kinds of magazine clips. Up to now those opposed to stricter gun laws have used the 2nd amendment as their shield. That should come to an end. Gun laws in this country, for 225 years have been a local issue decided by elected officials in individual states, cities, towns and villages. And if another gun related constitutional issue comes before the Supreme Court its not likely the Roberts Court will make the same mistake twice.
Other conservative judges have taken note of just how dishonest and hypocritical the decision of Scalia, Thomas, Alito et al has been and the preposterous opinion of Alito. A prominent conservative judge, Harvie Wilkinson III of the 4th Circuit US Court of Appeals said of the decision that the majority "read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.”
He added, as pointed out here, that the decision completely undermined conservative jurisprudence which is based on Original Intent. It not only undermined it, it made a mockery of it. Scalia's attempts at rewriting the amendment by talking about "limitations" when the amendment itself clearly states that there can be no limitation on the right enumerated, further erodes any confidence people should have that the decision was not politically motivated. But by injecting the idea of limits, Scalia is almost begging for a court challenge so they can get a do over and get it right.
The amendment is about militias and weapons of war, not guns and hunting, target shooting and personal self defense, despite the self delusion of people like Larry Pratt, head of another gun owners organization who thinks the amendment is about arming people against the government ( it isnt -- it was about creating and arming state militias to go to war against a tyrant taking over the government. ). And the amendment does not give people the right to have their own militias. Those who have tried ended up infiltrated by the FBI and carted off to prison.
Even the NRA leadership knows they blatantly lie about the Second Amendment. Which is why they lop off the first sentence of the amendment in their logo. But there is more than that. Even David Keene, president of the NRA knows what the second amendment really means even though he will never say so publicly.
He revealed it in a roundabout way talking about another subject. The NRA opposes an international treaty to restrict the international trade in "arms". Keene stated his opposition when he said, "biggest problem with the treaty is that it regulates civilian arms, not just military weapons". So he clearly understands there is a clear distinction between civilian guns and military weapons. The Second Amendment is clear about that also. Which is why it uses the word "arms" and not "guns". The amendment is distinctly about military weapons not civilian firearms. Which is another reason why former Chief Justice Warren Burger called the NRA the perpetrators of a "fraud" on the Second Amendment.
For now, there is one thing people, the congress, legislators, journalists and ordinary people need to know: the second amendment as it was created, as it was constructed and as it was intended has absolutely nothing to do with an individual's right to own a gun and never did. It does not confer that right. And in the debate about guns and laws everyone should proceed and act accordingly. Legislatures should feel free to enact any gun laws they wish, let someone challenge them if they choose and let the court try again. And the NRA is free to use whatever resources it has to try and elect legislators friendly to their position. But there is nothing in the constitution that supports it or guarantees it. Which is what makes politicians statements about the second amendment so laughable.And for people who swore on a bible to preserve and protect it,an embarrassment.
In coming up with gun control recommendations made by his task force, Vice President Biden issued a statement prior to the release of those recommendations which stated that "your second amendment rights are alive and well". Which begs the question, what second amendment rights are those? The rights that every Supreme Court in 225 years said had nothing to do with an individual right to own a gun? The only right an individual has regarding the second amendment is the right to join the army. Or their own state National Guard.
Wyatt Earp banned guns completely from Tombstone for years and required people to leave their firearms at the Marshall's office and pick them up when they left. And in more than 100 years, no one ever accused Wyatt Earp of being unconstitutional or violating anyone's rights.And neither would a ban on any gun a legislature decided had no business being sold at your local gun store and had no business being in the possession of an individual citizen.And there is nothing in the constitution that would prevent it.