What the Second Amendment Really Says
Here is the second amendment in its entirety:
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.
The NRA, in its incessant lobbying, emphasizes only the the second part–”the right of the people to keep and bear arms”–completely ignoring the key phrase with which the amendment begins: “A well-regulated militia.”
“Gun rights” advocates decry the very regulation that is clearly stated in the amendment. What the NRA wants, and what it claims to have the right to, is largely unrestricted, as opposed to regulated, individual access to firearms. This could not be further from intent of the actual second amendment. A well-regulated militia, designed to ensure the security of the state, makes no room for a rogue criminal roaming school hallways armed with handguns, assault weapons, or any other sort of firearms, any more than it makes room for some guy to carry a gun around the mall hidden under his sweatshirt.
We should also remember that the framers of the Constitution were writing in a very class-oriented society, in which the idea of the equality of men of different levels of income and education had not yet taken hold. In the Federalist Papers, Alexander Hamilton clearly states that it would not be feasible to have ordinary citizens walking around with guns.
A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss. (The Federalist Papers, Number 29)
In other words, a militia isn’t built in a day, and the “great body of the yoemanry”–i.e., the masses, can’t be expected to be well-trained enough to be part of a militia. It would be too time consuming and too costly, not at all feasible,. An untrained person cannot be part of a militia. What Hamilton appears to be describing here is something along the lines of the National Guard, which is a true, well-trained, and well-regulated militia.
Numerous court rulings have blasted a hole in the concept of the second amendment as a right to individual gun ownership.
Since the Supreme Court’s Miller decision in 1939, all federal appeals courts, whether dominated by liberals or conservatives, have agreed that the Second Amendment does not confer gun rights on individuals. The NRA view, opposed even by such right-wing judges as Robert Bork (see below), has been consistently rejected.
(Please scroll down to the bottom of this post for an update that provides clarification on Supreme Court rulings)
Note the Hickman decision of 1991:
In 1991, [Douglas Hickman] invoked the Second Amendment in suing the City of Los Angeles after failing to get a permit for a concealed weapon. In keeping with dozens of cases since 1939, the Circuit Court of Appeals ruled unanimously: “We follow our sister circuits in holding that the Second Amendment is a right held by the states and does not protect the possession of a weapon by a private citizen. (from Gun Control, the NRA, and the Second Amendment, by Jeff Cohen)
Right-wing judge Robert Bork, who served as judge for the United States Court of Appeals for the District of Columbia Circuit, and who was unsuccessfully nominated to the Supreme Court by Ronald Reagan, publicly denounced what he calls the “NRA view” of the Second Amendment. He mocked the NRA for its “belief that the constitution guarantees a right to Teflon-coated bullets.” Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia. (wikipedia)
Gun control advocates need to take back the word “second amendment.” When the second amendment is understood for what it really is, in its entirety, in the context of the language in which it was written, the NRA can no longer use it to advance the cause of individual gun ownership. To the contrary, the NRA will be forced to call for an amendment to the second amendment.
Update: 1:00 p.m. Pacific Time, Dec. 15 Thanks to my friend, novelist Meg Waite Clayton, for this note. Meg also happens to be a former attorney who is much better versed on Supreme Court decisions than I am:
Michelle, I read your piece on Sans Serif on guns, and I completely agree with you intellectually on what the 2nd Amendment should be read to mean. Sadly, the Supreme Court has actually disagreed with us. You have to look at two cases together, Heller (2008) overturning the D.C. gun control law, and McDonald, overturning the Chicago one. The wiki description kicking off Heller isn’t a bad description of the situation, so I’ve copied it below. I’m pretty sure the end result is that in order to have effective gun control, we need either a change in the Court or an amendment to the Constitution.
District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that theSecond Amendment to the United States Constitution protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home, in federal enclaves. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, which was addressed later by McDonald v. Chicago (2010). It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms.[2
Sans Serif is the blog of author Michelle Richmond.