'Neil and I are supporters of the real Second Amendment, not the imaginary Second Amendment....And this idea that the Second Amendment was put in there in order to allow citizens to fight their government is insane....'
- United States Senator Chris Murphy (D-CT), 39.5 years-old
THE ONE, ONLY AND REAL SECOND AMENDMENT:
Now, let's look at the argument that you and Senators Leahy, Feinstein and Durbin made that rights are not absolute. First, no one has argued that the Second Amendment stands for the proposition that people can have any type of arm on the planet. "Bear arms" had a specific meaning in English common law before the founding of the United States and the drafting/ratification of the Bill of Rights, namely, it referred to a firearm that could be carried easily by one individual. So, no one, except those lacking historical knowledge of the term and the reasons the Second Amendment was drafted, would conceivably argue, however implausibly, that private citizens or organisations have an unqualified right to own tanks, cannons, biological weapons, or nuclear weapons. We recognise that, like the First Amendment (human sacrifice, snuff films, incitement to riot, defamation, obscene materials, threats, etc), the Second Amendment can reasonably be read not to confer the "right to bear" an armed drone or weaponised botulinum toxin.
Secondly, although the Second Amendment may seem to be the one amendment that specifically envisions some sort of regulation on its face, it is actually the opposite.
While common law has long maintained the position that "punctuation is no part of statute," Hammock v. Farmers Loan & Trust Co, 105 U.S. 77, (1881), citing references from the late 18th and early 19th century), it does help us in two ways: 1) It helps divine intent; and 2) it shows how those with agendas are willing to even change the actual punctuation of the Constitution to further their agenda. It is important to pay attention to punctuation because the version that was ratified wis not actually the version frequently quoted today.
The Second Amendment, as oft-stated today:
'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.'
This formulation makes it appear that only those people in a "well-regulated" Militia (you'll also notice that milita is capitalised meaning that it must be a state-sponsored "Militia" like the National Guard) have the right to keep and bear arms - a right, which shall not be infringed. With regard to "the people," "shall not be infringed" almost becomes an afterthought in this version. But, about whom are we talking? Who would infringe upon the "right" of the people in the "Militia"?
Since it would be state-sponsored, that would have to be the Federal government. Yet, such an answer only raises another question. Why would the Framers have given the states a specific right in the Second when they intended that the states have all "powers not delegated to the United States by the Constitution, nor prohibited by it to the States...reserved...by the people"? Nowhere in the Bill of Rights are the states given specific rights. Indeed, states are given no rights in the first nine whatsoever. In the first nine amendments to the Constitution- even if we ignore the Second for the sake of argument - the rights recognised belong not to a government, but to citizens or people.
Apart from being grammatically incorrect, this version simply doesn't make any sense. Either people have a right, which shall not be infringed, or they do not.
According to both the Library of Congress and the Government Printing Office, the Second Amendment, as ratified by the States and authenticated by Thomas Jefferson, Secretary of State, only had one comma and reads as follows:
'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.'
'Well-regulated' modifies the word 'militia.' It doesn’t apply to arms. The 'right' of people to keep and bear arms 'shall not be infringed.'
The Framers were giving a reason why people should have a right to bear arms, i.e., the security of a free state relied on a 'well-regulated militia.' If they had wanted to do so – and, perhaps, they should have – they could have easily have dropped the modifying clause 'a well-regulated militia being necessary to the security of a free state.' Now, I do understand why the states or even corporate (not necessarily in the way that the word is defined today) entities may have wanted a defined right to bear arms and have a well-regulated - meaning well-equipped, well-disciplined, well-organised - militia considering the recent history at the time of the Second Amendment's drafting. So, the incorporation of the 'well-regulated militia' clause in the amendment certainly has a solid legal and historical basis, but it has no bearing on the right of people, as individuals, to bear arms. The Tenth Amendment could certainly have protected the states' rights to have 'well-regulated militias' and the Second Amendment would have still protected the rights of "corporate entities" to bear arms, along with the assemblage protection of the First. Nevertheless, the intent of the Founders was clear, if one reads the Federalist Papers, the Anti-Federalist Papers, and the correspondence and other writings of the Framers. They intended for a free people's natural right to bear arms to not be infringed upon by government.
The Heller decision said that 'dangerous and unusual weapons which are not in the common usage' can be regulated or banned by the government. It said that there was an individual right to bear arms; 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 handgun bans 'amounted to a prohibition of an ENTIRE CLASS OF ‘ARMS’ that is overwhelmingly chosen by American society for that lawful purpose.'
Thus it ruled invalid the District’s requirement 'that firearms in the home be rendered and kept inoperable at all times,' noting that doing so 'makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.' (The holding in Heller was applied to the states in McDonald v City of Chicago, 561 U.S. 3025 (2010).)
DANGEROUS:
The AR-15 is the #1 rifle sold in the United States. It is no more dangerous than handguns. In fact, it kills FAR less. In 2011, 72.5% of all gun-related homicides were committed using handguns. In 2011, 3.8% (323) of ALL gun-related homicides in 2011 committed with rifles of ALL KINDS, INCLUDING 'ASSAULT RIFLES' LIKE AR-15s.
UNUSUAL:
There is NOTHING unusual about AR-15-style rifles…unless one is afraid of black, skeery, plastic thingies.
Don’t believe me? Then, look at the pictures of these two guns and ask yourself, 'Does one really look that much more ‘dangerous, unusual and uncommon’ than the other?
Not banned under the 1994 AWB
Banned under the 1994 AWB
Both are AR-15-pattern rifles that came off the same assembly line, fire the exact same ammunition, and use the same magazines....BUT the rifle on the bottom has a small bit of metal under the front sight to which a bayonet could attach and a small vented tube on the end of the barrel that redirects unburned gases.
UNCOMMON:
Really? AR-15s are uncommon? Since when?
In 2009, it was estimated that there were 3,261,725 of AR-15s – alone, not just AR-15-style – in the United States…and the homicide rate was 5.0.
In contrast, in 1994 when the original Assault Weapons Ban went into effect, there were approximately 1.5 million AR-15s in the United States and the homicide rate was 9.0.
Murphy, Feinstein, Scarborough, and Mitchell should really go back and read the Heller decision. Cruz knows it…since he was one of the attorneys that won it before the Supreme Court.
NOW, WHAT DID THE FOUNDING FATHERS SAY:
'I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.'
- George Mason, co-author of the Second Amendment during Virginia's Convention to Ratify the Constitution, 1788
'A militia, when properly formed, are in fact the people themselves …'
- Richard Henry Lee, writing in Letters from the Federal Farmer to the Republic, Letter XVIII, May, 1788.
'The people are not to be disarmed of their weapons. They are left in full possession of them.'
- Zachariah Johnson, Elliot's Debates, Vol. 3 ‘The Debates in the Several State Conventions on the Adoption of the Federal Constitution.’
'… the people are confirmed by the next article in their right to keep and bear their private arms'
- Philadelphia Federal Gazette, 18 June 1789, Pg. 2, Col. 2 Article on the Bill of Rights
‘And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;’
- Samuel Adams, Philadelphia Independent Gazetteer, 20 August 1789, ‘Propositions submitted to the Convention of this State’
"Firearms stand next in importance to the constitution itself. They are the American people's liberty teeth and keystone under independence … from the hour the Pilgrims landed to the present day, events, occurrences and tendencies prove that to ensure peace security and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms anywhere restrains evil interference — they deserve a place of honor with all that's good.'
- George Washington, First President of the United States
'To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.'
- Richard Henry Lee, American Statesman, 1788
'The great object is that every man be armed' and 'Everyone who is able may have a gun.'
- Patrick Henry, American Patriot
'Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?'
- Patrick Henry, American Patriot
'Those who hammer their guns into plowshares will plow for those who do not.'
- Thomas Jefferson, Third President of the United States
'The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed;'
- Thomas Jefferson, letter to Justice John Cartwright, 5 June 1824. ME 16:45
'The best we can help for concerning the people at large is that they be properly armed.'
- Alexander Hamilton, The Federalist Papers at 184-8
‘A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.'
- Thomas Jefferson to Peter Carr, 1785, The Writings of Thomas Jefferson
'One loves to possess arms, though they hope never to have occasion for them.'
- Thomas Jefferson to George Washington, 1796, The Writings of Thomas Jefferson
'We established however some, although not all its [self-government] important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed.'
- Thomas Jefferson to John Cartwright, 1824
'No freeman shall ever be debarred the use of arms.'
- Thomas Jefferson: Draft Virginia Constitution, 1776
'The supposed quietude of a good man allures the ruffian; while on the other hand arms, like laws, discourage and keep the invader and plunderer in awe, and preserve order in the world as property. 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 … Horrid mischief would ensue were the law-abiding deprived of the use of them.'
- Thomas Paine
Gun control advocates always point to the word "militia" in the Second Amendment as proof that the Founders would support gun control laws. That contention is not supported by the historical documents. As the Founders continually acknowledged, A MILITIA IS THE WHOLE OF THE PEOPLE. In fact, in the Second MILITIA Act of 1792, ALLable-bodied, white men over the age of 18 were required to possess a gun.
On 18 June 1789, Pg 2, Col 2, the Philadelphia Federal Gazette reported:
'… the people are confirmed by the next article in their right to keep and bear their private arms.'
William Rawle, authored "A View of the Constitution of the United States of America" in 1829. His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10, he describes the scope of the Second Amendment's right to keep and bear arms:
'THE PROHIBITION IS GENERAL. NO CLAUSE IN THE CONSTITUTION COULD BY ANY RULE OF CONSTRUCTION BE CONCEIVED TO GIVE CONGRESS A POWER TO DISARM THE PEOPLE. Such a flagitious attempt could only be made under some general pretence by a state legislature. BUT IF ANY BLIND PURSUIT OF INORDINATE POWER, EITHER SHOULD ATTEMPT IT, THIS AMENDMENT MAY BE APPEALED TO AS A RESTRAINT ON BOTH.'
Chief Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote:
'The next 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."
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.'
THE PURPOSE OF THE MILITIA CLAUSE:
'Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well-regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. THE PLAIN LANGUAGE OF THE AMENDMENT, WITHOUT ATTENUATE INFERENCES THEREFROM, SHOWS THAT THE FUNCTION OF THE SUBORDINATE CLAUSE WAS NOT TO QUALIFY THE RIGHT, BUT INSTEAD TO SHOW WHY IT MUST BE PROTECTED. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized.' (U.S. v Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999)).
THE FOUNDING FATHERS ON MAINTAINING FREEDOM
'The greatest danger to American freedom is a government that ignores the Constitution.'
- Thomas Jefferson, Third President of the United States
'There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.'
- Noah Webster, American Lexicographer
'The people never give up their liberties but under some delusion.'
- Edmund Burke, British Statesman, 1784
'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, to James Madison
'They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.'
- Ben Franklin, American Statesman
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