I’ve been around the Internet since before there was an Internet. I cut my teeth on Bitnet, one of the Internet’s precursors (you youngsters can go Wikipedia that). From the beginning, I’ve seen more than my share of commenters on firearms-oriented websites who suffer from a severe lack of maturity. Over the last few weeks, I’ve been surprised at the level of intelligent discourse in many of the comments on such sites, particularly here on TTAG. I do want to address one particular line of thinking, though, that I have seen running through various conversation threads: the idea that openly thumbing our collective noses at the non-gun community is a good idea and in fact necessary to protect our rights . . .

It’s been said that a right not exercised is a right that is likely to be lost. I can’t argue with that sentiment and it particularly applies to the First Amendment, the meaning of which is not particularly vague. The Second Amendment, by comparison, is somewhat more open to interpretation.

My basis for this line of reasoning is simple. Freedoms of speech, religion and of the press  are pretty clear and relatively uniformly observed nationwide. Sure, there are the occasional dustups but let’s face it, if you want to stand on a busy street corner in any city and say that this or that politician is a moron, etc., no Men In Black are going to show up to take you away (threaten the life of someone and that is a different matter). No state can pass a law restricting your right to do this.

On the other hand, with respect to the Second Amendment, each state makes its own laws regulating a person’s right to carry a firearm. So, from at least one point of view, it can be argued that the First and Second Amendments are not on the same level. One is actively protected by the federal government and the other…not so much.

Taking things a bit further, let’s explore the term, “right.” As gun owners in the United States, many of us believe that we have the God-given right to keep and bear arms and that right can never be taken away from us. Is this really true? Unfortunately, the wording of the Second Amendment is vague. It does not say, “The rights of the people to own and carry firearms shall not be infringed.” No, it says, “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.” So what does that mean?

No, put your hands down, I know what you think it means. I suspect however, that if I asked someone from the Brady foundation what that text meant, they would have a different answer. So, who’s right?

Well, that’s the crux of this discussion. Who indeed determines the correct interpretation?  Let me dust off my copy of the Constitution and see. Yes, it looks like it is the role of the judiciary to interpret the law. But, a judge can interpret the Second Amendment in many ways.  The two most common are, “The right of the people to own and bear arms shall not be infringed” and “people may only keep and bear arms as long if they are members of a well-regulated militia.”

Don’t laugh at the second one. That is essentially the position of Supreme Court Justice Stephen Breyer and three of his pals. Obviously, depending on which interpretation you take, the impact on our ability to own guns can be significant, particularly since I don’t know of any well-regulated militias around here that I could join.

Gun owners like to point to the Heller and McDonald cases as examples of where the U.S. Supreme Court agreed with our interpretation of the Second Amendment, but a closer look at the cases is instructive and frankly a bit worrisome.  Heller was a 5-4 decision as was McDonald.  This means that a one vote change could have dramatically changed gun laws in the United States.

In his dissenting opinion in the McDonald decision, Justice Breyer wrote, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense. There has been, and is, no consensus that the right is, or was, ‘fundamental.”  This is the position of the 4 member minority. If they ever become the majority, this will be their interpretation of the Second Amendment.

The problem is that there is no higher authority than the Supreme Court. If they were to shift their position, the only recourse we would have as gun owners would be to convince Congress to act and based on what I have seen over the past couple of years, don’t expect swift action.

What to do? I’ll explore that in Part Two.

 

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80 Responses to Rethinking the Second Amendment – Part 1

  1. Both sides claimed the Heller decision as a victory, I’m still not sure who really won. Yes they did say we have a RKBA but with “reasonable” restrictions.

    • Yes, the justices refused to set the level at which the right can be infringed, and this is not necessarily a flaw. It just means they want it to percolate through the lower courts first. Sometimes it’s better to be patient.

      But the potential exists for them to conclude all that is needed is a rational basis test which has come to mean in other matters that basically any reason is good enough to restrict the right. Let’s hope they don’t. Sitting back and being quiet will not influence the public debate, though.

  2. You need only look to various quotations from the “Framers” during that time to assess their intent. When you do it becomes clear.

    Here’s one for you: “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams

    The words “their own” seem to convey an individual right to me. Justices like Breyer are intentionally ignoring the perceived intent of the framers and playing semantics to rewrite laws to their personal taste.

    • The problem we have is that history is full of examples in which the Justices of the Supreme Court have ignored or disagreed with what many would understand is the intent of the framers of the Constitution. One thing that is clear is that the framers definitely wanted a weak central government with more power in the hands of the states, yet the Supreme Court has regularly invoked the Commerce Clause of the Constitution to justify all manner of Federal interference in the business of the States. The danger here is that it really doesn’t matter what you and I or for that matter, most people think the framers really meant. What matters is what the Supreme Court thinks and the concern I have is that the liberal wing of the SC has shown a marked increase in using their position to make law rather than just interpret it.

      • Wrong, the framers wanted a limited government with strong powers in the select areas. You are describing the powers of the central government under the Articles of Confederation. The Constitutional Convention was called to find a solution to a weak central government that couldn’t not solve national level problems.

  3. Mr. Barrett, you are correct that 2nd amendment is written differently than the 1st. The 2nd contains the phrase “shall not”. “Shall” is the imperative form of “will”, and archaically (say, 200-ish years ago?) was synonymous with “must”. I do not believe that the word “not” has changed in meaning. It is telling that the 2nd amendment features this exhortation against government interference, and that the word “unless” does not make an appearance.

  4. What to do indeed. Maybe we all purchase one less firearm this year, and send the proceeds we would have otherwise spent, to 2nd ammendment organizations that can apply the type of pressure that matters.

    With regards to the interpretation of 2A “people may only keep and bear arms as long..as…they are members of a well-regulated militia”, we should probably work on defining what a “well-regulated militia” means. A National Guard or any militia sponsored by the federal goverment or the State, shouldn’t hold any special consideration over a say…….local community “militia” or “Gun Club”, with enough training and relative community specified “regulation”.

    • “Maybe we all purchase one less firearm this year, and send the proceeds we would have otherwise spent, to 2nd ammendment organizations that can apply the type of pressure that matters.”

      We’d be better off spending the money on ammunition and training. In the over 200 years since it’s inception, the Constitution has failed to restrict the growth of federal tyranny. The system is rigged and lobbying will not increase our liberty. The only “pressure that matters” to them is that of their wallets. But I’m sure they’ll soon find muzzle pressure just as convincing.

    • Alternatively, what did they mean by “necessary to the security of a free state”?

      You need some history here, because “militia” means something very different to a modern American than it did to an 18th Century colonist. In English history and common law, which was and is the basis of US common law, the militia consists of all able-bodied male citizens and is called up in time of invasion to augment the army and defend the home territory. Also – and this is key – like medieval knights, archers and other military specialists, militiamen provided their own battle kit.

      Those are important pieces of the puzzle, because if the government arms the militia then it wouldn’t make sense to link “the right of the people to keep and bear arms” to the need for a militia, because in time of threat the people would just go down to the government arsenal to be issued with weapons.

      Second, we need to reconsider the implied assumption that “the security of a free state” refers only to foreign threats. The framers were more intimately familiar with domestic ones, especially those emanating from the national capital. Again, why talk about a right of the people to keep and bear arms, or even a militia (as opposed to a standing army) if the threat you have in mind is foreign. That kind of defense is dealt with elsewhere in the Constitution, and in any case the Bill of Rights was written in response to public perception that the Constitution failed to enumerate the rights of citizens, not basic functions of government such as national defense.

      It makes more sense to interpret the entire notion of a militia, and the right of the people to keep and bear arms, as setting the body of armed citizens apart from either the government or the regular army, and implying that its portfolio includes backstopping the people’s freedom against both foreign invasion and domestic (government) aggression.

  5. While in practice, the States are making up their own laws, under the Tenth amendment

    “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”.

    You seem to just forget there are 8 more parts to the BOR. Go ahead, read it again – did this part “nor prohibited by it to the States,” jump out at you? The States cannot under the Constitution just ignore the Second Amendment.

    Whether is was a 5-4 or 9-0 vote, it stands as the current interpretation (incorporation of the 2nd Amendment using the 14th Amendment “Equal Protection” clause (or was it the other part – who can tell anymore)).

    Beyond that, the structure of the 2nd amendment is actually stating “Because the State needs a well-regulated militia (military) (and the feared a strong tyrannical state), the people shall not lose their rights to keep and bear arms.

    These were men who were deeply afraid of a Government that was (is) too strong and wanted to ensure that the people had the means to fight back if it ever became too onerous.

    • Actually, if you look at the history around the Constitution’s framing date, you will see that there was no central army at the time. The framers were highly suspicious of any standing army given their experience with the British and thus the only defensive forces at the time were the state militias that were controlled by the leadership of the states. I keep coming back to the fact that how you choose to read the 2nd amendment and how a future potential Supreme Court do may be different. Specifically since it is the SC’s interpretation that will be the law. If the SC is able to rule on a case in which they follow Breyer’s lead and decide that the 2nd Amendment does not in fact “protect a private right of armed self-defense.,” the States would be free to make whatever laws they wished and while some states would probably remain free ones, others would probably tip over to the dark side like Illinois.

      • Well – we should then elect a pro-2nd amendment President and get a filibuster-proof Senate for confirmations to the Supreme Court. We get the laws we deserve when we elect these people.

        • “we should then elect a pro-2nd amendment President”
          —–
          Good luck with that sh!t. Our options don’t look too hot this cycle.

        • They alson inserted a little qualifier on subject to police gibberish/laws, powers or something like that in the last 3 decades.

          Therein is the problem for Ilinois.

  6. I think your understanding of first amendment law is pretty flawed. It is not as clearly written as you suggest and much of our understanding of our rights has gone through some bitter fights. And the government is still frequently trying to rob us of our speech, religion, and press rights. For instance, there are some who think that bloggers are not “the press” even though blogs bear much greater resemblance to the pamphlateers of the 18th century than does Time magazine.

    Gun rights will only be protected as long as the society supports them. Society will not support gun rights if we don’t make sure they know there is a struggle and the stakes that are involved. This is not a time to be quiet. We are winning the philosophical and political struggle and now is the time to keep pressing.

    I really like the flag in the picture.

    • Skyler,

      I’m not saying that the first amendment is without controversy. I am simply saying that today, its meaning seems to be a bit clearer to the average person than the second amendment is. The example you bring up about bloggers not being considered press is more an interpretation issue than a clear violation one. For more than a century, this country has had a pretty clear understanding of what the press is. Bloggers, while they might be similar to the pamphleteers of old are a different model than what society has been used to. Whenever a different model emerges, there are some growing pains as society, its laws, and protections are forced to adapt.

      I could have easily used the example of the 14th amendment. Today, we are pretty clear what things such as Equal Protection for minorities means, but shortly after the passage of the 14th amendment, there were plenty of court cases dealing with violations of the rights of minorities under the 14th amendment. My point is that while there are the periodic disagreements over the first amendment, you don’t have SC justices running around saying that freedom of speech, the press, or religion is not protected (please don’t cite the “shouting fire in a crowded theater one.” You, do have SC justices (Breyer) saying that the 2nd amendment does “not protect a private right of armed self-defense” and frankly, his interpretation is likely to carry a lot more weight than yours if his point of view ever makes it into the majority.

      • So what your saying is that the dissenters, are now claiming that the dependent clause of a complex sentence, now carries the determination of what a complex sentence means, when for all of written english history, the independent clause hase set the meaning

        ?A dependent clause, is not a complete sentence, can not stand by itself, and as such can not convey proper meaning. In the second amendment, that is the “Well regulated” portion of the sentence.

        Now the independent clause, the “Shall not be infringed” part of the sentence, is a complete sentence, can convey a defined meaning, and must first exist in order for the dependent clause to have meaning.

        This is the basis for ALL of the english language for ALL complex sentences and impacts ALL court rulings from whenever because meanings of the words DOES impact those legal decisions.

        Then we have all those references showing that well regulated as meaning well trained from the 1774-1789 congressional wiritings & Federalist papers (see Karpeles Museun CA), dictionaries said the same thing.

        Then we have the original draft of the what became the second amendment clearly written as a collective right, but was then rewritten to what exists today. If the collective right was what the founding fathers would have intended, one would tend to believe they would have kept the original draft. Ref Karpeles Museum CA again.

        So unless a Judge can rewrite english to be flexible and changing dependent on a persons opinions, doubt that will ever occur, then go ahead and let him try to do so as the evidence from back then sure doesnt agree with a collective right, and that evidence has not changed.

  7. We have the Second Amendment because the King tried to sieze arms held by the colonists. The framers wanted to ensure that the government could not disarm the people. If you want to read the full meaning of the Second Amendment go look up the wording in the Virginia constitution. It was written by the same person who wrote the language in the Bill of Rights.

  8. In regards to the well regulated militia lets explore that as well. The “militia” helped turn the side at several key battles of the revolutionary war. When it was over, what did they do?

    They went home. They did not gather and train in military drill or anything like that, they put their musket back over the mantle and went back to farming, smiting or whatever their trade was.

    When SHTF those people, who were self armed, pretty much every able bodied man were called upon to FORM the “well regulated militia’ and fight the British. In short, the founding fathers wanted to protect the rights of the citizenry to bear arms not only to insure that a would by tyrant would think twice before becoming “King” of America, but also to act as a force that was self equipped (at the time your main equipment was pretty much your gun) and that could be quickly mobilized to act against any threat to the nation.
    If the French invaded Britian, your average joe was not equiped to fight back.

    There have been informal reports that the Japanese were discouraged from an “Invasion of the west coast” during the opening months of WWII because of the sheer number of armed citizens.

    We the American people are the very reason that to this day a military invasion of the US is simple unviable.

    That IMO is a valid argument for gun ownership, not even taking into account SD or CCW.

      • Yeah, we know that, doesnt chage the fact the public was and still is well armed. Nor does it preclude that any agency, organization, or country intending to subdue a population must consider what such an armed populace would be a significant threat. Hence the intent of the message is neither legend or make believe fabrication.

        Unless of course you can go to the government think tanks and prove they have never studied all the abdsurd and real possibilities to formulate a plan of action were such an uprising, or invasion to occur, and the armed civilians were not factored and considered in their scenarios.

        Read up on Plan Orange, the intended battle plan for engaging the Japanese prior to World War 2, those studies exist.

        It would be foolish not to consider the impact of such a group of 80 mil households with firearms, 250 mil weapons and billions of rounds of ammunition the government acknowledges (there are more), or the 30-35 mil former military personnel in civilian life who didnt forget all their training and skills.

  9. The problem isn’t interpretation,but of culture being modified by a government that passes gun legislation for its own benefit.

    Let it be established by both the historical record globally and in this country that governments no matter what form or origin trend towards limting rights and increasing its authority in every facet of life.This historical truth applies to free speech and gun rights.The progression cycle works like this;governments pass laws regulating guns heavily enough to make owning one a pain in the neck,so fewer people bother with owning one.With gun ownership reduced the next evolution of gun restriction laws advances,and so on until out of ten people 9 haven’t even seen a gun in private hands before,much less shot one.At that point disarmament is a foregone conclusiion,as the voting public won’t have any concept of what they’re losing. If you’ve never owned an iPod,you won’t care if they get banned.

    Free speech regulation is somewhat more subtle,because unlike guns news can’t be serial numbered or registered.So the best way to control the news isn’t to ban it,but to ensure the most popular media channels don ‘t report anything against the government and to discredit the outlets which won’t play ball.

    Thus,what we are up against in terms of gun rights isn’t a matter of law;its a matter of cultures,one that says guns are unnecessary in civilian hands and another which holds to the idea that guns must first and foremost be in civilian hands.Frankly,neither side is going to give the time of day to the other no matter what statistics or evidence comes up.As sure as I’m pro 2nd Amendment,there’s ten people in New Jersey who think I’m insane for thinking that anyone should buy a gun in a retail store without government intervention.

  10. “The problem is that there is no higher authority than the Supreme Court. If they were to shift their position, the only recourse we would have as gun owners would be to convince Congress to act…”

    The Constitution is a higher authority than the SCOTUS, no matter how they twist and “interpret” it to enact their tyranny.

    Convincing Congress would perhaps be the only legal recourse, but certainly not the only recourse.

  11. I dusted off my copy of the Constitution and came across something else…

    Amendment IX – The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

    In other words, just because we lay out certain rights here, don’t think it means the government can take away rights we didn’t specifically list here. When studying our Constitution and the government’s powers, the burden of proof lies on those who would take away our rights to demonstrate where the Constitution clearly gives the government the power to do so and not for citizens to demonstrate where the Constitution clearly states they have the “right?” to keep their rights. For that, you have to go to another country.

  12. While I disagree with Breyer’s dissent because we have sufficient evidence of the thinking and intentions of various state delegations of the time, I will not dwell on that: The point of view taken in this article utterly neglects the history of the various rights in the hands of the states. You claim a differentiation of the 2nd Amendment because “each state makes its own laws regulating a a person’s right to carry a firearm.” If you had a historical knowledge of the evolution of state case and statutory law regarding the 1st, 4th, 5th, and 14th Amendments (amongst others) you would be fully aware that the states also made their own often radically restrictive law, case or otherwise, of those other rights, with no vague wording involved. Even after the drawn out process of ‘incorporation’ of the rights, states continued to enforce very different and often blatantly wrong interpretations of the Federal Bill of Rights. It is also true that many Federal and State laws were struck down by the Supreme Court because the laws effectively invalidated various of the rights. This is hardly unique to 2nd Amendment controversies. Your ground assumption is simply

    • wrong. The 2nd Amendment almost uniquely specifies a right of ‘the people’ which the states were barred from abrogating from the day the Constitution was ratified. The 1st Amendment, in stark contrast, did not specify Free Speech as a right of ‘the people,’ but merely forbid Congress to pass any law ‘abridging’ that right. A prolonged process of ‘incorporation’ developed what you think of today as your 1st Amendment right.

      • I beg to differ. The Bill of Rights was meant to restrict the power of the federal government, not the state governments. At the time it was assumed that the states would have similar restrictions of power in their constitutions. It wasn’t until the 14th Amendment that the states were obliged to guarantee rights as well.

        • Skyler, I agree that “states were barred from” is incorrect wording and hasty. My intent was to say that the right is an individual right, and that after the incorporation in McDonald, states were barred from enforcing laws acting contrary to that, as if that were the law from the moment of ratification. The moment the court incorporated the 2nd Amendment under the 14th in McDonald v. Chicago the prior line of cases (United States v. Cruikshank (1876), Presser v. Illinois ( (1886), and especially United States v. Miller (1939)) became irrelevant. In Presser the court refused to ‘incorporate’ the 2nd Amendment via the 14th. The view was (past tense) that the 2nd Amendment was intended only to prevent the Federal government from interfering with the states’ right to maintain a militia. After McDonald overturned the Seventh Circuit, the states could no longer rely on the distinctions they themselves had drawn based on the prior string of Supreme Court opinions. Heller overturned the prior cases on the question as to whether the right was an individual one. McDonald incorporated the right under the 14th. The right is an individual right and self-defense was among the Framers’ intended goals. In my state, PA, that right to bear arms for individual self-defense appears in our state constitution, one of four states whose early views had to be taken into account by the Heller court. In other words, the effect of Heller and McDonald together is to require the states to respect this, that the right to keep and bear arms is an individual right, incorporated by the 14th Amendment, effectively nullifying back to the ratification of the Bill of Rights laws which do not take this into account. Thanks for your comment.

  13. Most of my points have been better articulated by my fellow posters, but…

    Reading history and writings of the framers, why is the 2nd a case of militia or personal ownership? My belief is they meant both. As an individual, you have the right to keep and bear arms, and a right and duty to come together with fellow citizens in times of need. As the framers lived through, this includes armed insurrection against a tyrannical government.

    States may make laws restricting firearms ownership, but it seems to me that this contradicts the 2nd ammendment. Remember that much of our gun control law grew out of the disarming of the african-american population after the Civil War. Since then we have suffered a death of a thousand cuts, and now have “precedent” that is inimical to firearms ownership. The country is in the process of walking this back, but to take a snapshot of laws now, and say “this has been decided, ” is a falacy. Wipe the slate clean and go back to gun laws of the early 1800s and we would be where the framers intended. I do not give credence to the arguments of those who would restrict gun ownership, and the precedent that they have set must be walked back. They have won much, but that does not make them right.

  14. It seems passing strange to take up detailed analysis of “what if Breyer was right?” “What if Dred Scott was right?” At best the topic is suited to a law review article. Otherwise it constitutes the initiation of a polemic against the majority opinion and is, I would think, an absurd topic for this forum. But, hey, have at it.

  15. Just an aside:
    “Freedoms of speech, religion and of the press are pretty clear and relatively uniformly observed nationwide. ”

    I don’t know if your caveat after this statement was intended to cover the “freedom of religion” aspect of the triumvirate, but as one who follows both the attacks on our rights to own guns and the attacks on freedom of religion, I’d have to say that the freedom of religion is much more endangered right now from the same groups that attack our freedom to own guns.

    Michelle Malkin has a column on this issue today titles “First They Came For The Catholics” : http://www.jewishworldreview.com/michelle/malkin020112.php3 that is worth the read.

    FWIW, it appears that the same tactics are used to attack both freedoms. It is worth paying attention to the entire battlefield, not just the skirmish we may be in at the moment.

    • Graybeard,

      You make an excellent point. If we want to get our fellow citizens on board, we need to get them to see the whole picture of government transgressions. Sure, today it is gun ownership. Tomorrow, religion, the day after, what car you can drive (goodbye gas guzzlers). How about what kind of light bulb you can use? The more we can convince others that the transgressions into our personal freedom touch many aspects of our lives, the greater the chance of getting enough people actively engaged in changing things.

    • A very sobering read, indeed, ans sadly not at all surprising.

      Truly, gathering people under the banner of fighting back against oppressive government intrusion as a whole might muster a larger crowd than purely focusing on 2A.

      Of course, we’d have to pry people away from reality TV and their own narcissism first. Good luck.

      • Silver,

        I believe that what can pry folks away from the “reality” tv junk & narcissism is an attempt to come to the issues in some form other than what I call “The Chicken Little approach.”

        For instance, although I am generally in agreement with the NRA’s activities and functions, their constant and unrelenting scare-mongering disgusts me. Similarly with the Focus On The Family organization. I suspect that one of the biggest draws to the various Tea Party groups is the minimal scare-mongering, in conjunction with reasoned discussion and a sense of making a difference in the local scene.

        FWIW – I think one of the great values in TTAG to date has been the (relatively) reasoned discussions we’ve had here with only the occasional hyperbolic statement.

  16. Sound of head banging against the wall…

    First of all, I don’t disagree with the assertion that the framers did intend us to keep personal firearms. Fact is, that in colonial times, many people had muskets, so for the framers, the thought that there might one day be a large number of non-gun owners probably never occurred to them.

    Secondly, we can argue constitutional issues all day and toss amendments back and forth. I am not a Constitutional Scholar and don’t pretend to be. I simply contrasted the wording a the first two amendments to illustrate a point, which I think has gotten lost.

    The point I am trying to get to is that as gun owners, our ideal “utopia” is to live in a country with reasonable gun laws coast to coast. We don’t have that right now. To achieve it, there are two possible approaches. The first is to use the 2nd amendment and historical case law to challenge local laws jurisdiction by jurisdiction. Heller and McDonald are two recent examples, but there are many others. This approach works by basically using the Constitution to subvert the right of a particular state to pass restrictive gun laws. This works only so long as the judiciary of the SC agrees with that position. If that changes, then the ability to use the Constitution as leverage is diminished and we must look at method two.

    Method Two – and the more permanent and better one is to change the laws of the state to make gun ownership easier. This is of course the longer and harder approach, but ultimately the one we should be striving for.

    My intention of this post was to set up part two in which I make a suggestion as to how we might go about influencing our fellow citizens to make the right decisions politically to establish the state laws we desire. My other intention was to suggest that the shield afforded by the 2nd Amendment may not be as strong as we would like for it to be and that depending on how the political winds shift, we could lose it altogether. You can disagree with me if you like, but the evidence of the SC’s position is clear for all to see. Breyer and his posse really are not interested in discussing what the framers may or may not have intended. They simply want to change existing support for personal firearms ownership and through the interpretation power of the SC, they have the vehicle to do it.

    • You sound frustrated – it is the writer’s responsibility to convey his message and not leave it up to inferences, unless that was your intent?

    • lol! what a joke! When was the last time a consensus was reached on any topic? If you cant achieve a consensus, then how do you define “reasonable” laws? The idea that only the government should own firearms is considered “reasonable” by many.

  17. “The problem is that there is no higher authority than the Supreme Court.”

    That is incorrect, Jim. The higher authority than the Supreme Court may be found in the first three words of the Constitution.

    “We, the people …”

    • Ah. A very interesting point. Yes, “We the People”. Question is, how does that work exactly? We the people can pass a law that the SC strikes down as unconstitutional. The SC can strike down any law it wishes – even ones passed by Congress. Our only true recourse around the SC’s ability to interpret laws is to either amend the Constitution or to convene a Constitutional Convention and toss the whole thing out. Both would require passage by 2/3 of Congress and ratification by 3/4 of the states. What do you think the chances are that you could get 2/3 of Congress and 3/4 of the states to agree on anything? Perhaps this is why the last time a substantive amendment was passed was 1971. Sure, the 27th amendment governing Congressional pay raises was passed in 1992, but that was a pretty easy one compared to things like gun laws.

      Point is that theory, while beautiful thing is one thing. Actually making that theory happen is another thing entirely.

      • Sometimes I think if we ratified an amendment to the Constitution in order to get around the Supreme Court’s decisions, they would simply “interpret” the new amendment to mean whatever they want anyway. California’s courts have made a habit of that lately, it seems.

      • You do NOT need Congress to agree to a Constitutional Convention. Article V of the US Constitution: “The Congress …, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, … shall be valid to all Intents and Purposes, as part of this Constitution…”

        Three-fourths of the state legislatures are necessary, but if they vote to call a Constitutional Convention then Congress SHALL call such a convention for proposing amendments. If Congress refuses, then we will find out whether or not Americans will agree to live under a tyranny.

  18. Why don’t we just rethink the entire Constitution and become a bunch of no good COMMIES(some COMMIES are good because their dead). I guess our founding fathers were a bunch of silly old men with nothing better to do than write our Constitution.

  19. What was essentially a glorified BBS is not the internet. I had a couple computers hooked up over PhoneNet, or (my parents) AOL account (which was also a glorified BBS), does that make me elite too?

    “…the idea that openly thumbing our collective noses at the non-gun community is a good idea and in fact necessary to protect our rights . . .”
    I guess the idea of thumbing our collective noses at the british 200+ years ago wasnt a good idea to protect our rights.

    “…if you want to stand on a busy street corner in any city and say that this or that politician is a moron, etc., no Men In Black are going to show up to take you away”
    Tell that to the occupy protestors, or read up on things like COINTELPRO or MKULTRA. Does it count if they are Men In Blue rather than black?

    “Unfortunately, the wording of the Second Amendment is vague. It does not say…”
    What the law was or is doesnt matter. It used to be legal to own people, does that make it right?

    “The problem is that there is no higher authority than the Supreme Court.”
    What a slave mentality you have. Most people consider themselves or “god” to be the highest authority.

    “…the only recourse we would have as gun owners would be to convince Congress to act…”
    Or a civil war.

    • Not only that, but the implied appeal to authority was irrelevant to the argument being presented. [shrug]

  20. To shorten Jim’s post, The Supreme Court Issuses bad decisions from time to time(re Dred Scott or when GWB thought they would shoot down McCain-Feingold so he signed it to make peace and the SC let it through). So the best option is to stop bad gun laws from being past at the legislative level. Get the legislature to overturn bad gun laws. Get the legislature to pass good gun laws. Take it to the courts last because you can never be 100% certain what they will do, no mater how clear the constitution is.

  21. the idea that openly thumbing our collective noses at the non-gun community is a good idea and in fact necessary to protect our rights . . .

    Jim, I have no idea what you mean by “thumbing our collective noses.” Since the main thrust of your post is that we shouldn’t thumb our noses, please tell me what you’re talking about.

  22. Jim Barrett

    I agree that there is disagreement about what the Second Amendment means and what the founding fathers said. What I’ve noticed in studying this issue is two aspects that seem to get little to no discussion.

    The first being the Articles of Confederation that existed for a little over a decade from the end of the Revolutionary war to the passage of the U.S. Constitution. What most people seem to forget is that the founding fathers tried a governmental framework through the Articles of Confederation that gave most powers to the states very and little if any powers to the federal government that the states would look out for their citizens on states issue and act in the common good for issues affecting the newborn nation. As any student of history will tell you it didn’t work out that way. It was with this backdrop that the founding fathers decided that a new and stronger form of federalism was needed to to weld the original 13 colonies together as a nation and not a collection of individual states. The constitutional convention which led to the U.S. Constitution and the Bill of Rights has volumes of writings as to the meaning and background of each and every article and amendment. They knew at that time based both on history and their experiences during the Revolutionary war that there must be a continuous balancing act between the rights of the individual and states and the rights and responsibilities of the federal government lest the government become tyrannical.

    What I have noticed in a lot of the posts in both this article and other blogs is people talking about how federalism is a bad thing, that states should be allowed to set their own agenda and right on most things and that they should only abide by laws that they feel do not apply to them or recognize laws of other states. To me this is the same problem that damaged and killed the original Articles of Confederation and led the founding fathers to say that there needs to be a federal government with powers to do it’s best for the nation. the founding fathers knew that we must always look out for and protect ourselves from a runaway federal government, a government that feels only its opinion matters and that the opinions of the individual or small groups of individuals have no meaning or value. the key to this they knew was the right to keep and bear arms a right like all others which they saw as individual rights and not the rights of a governmentally organized militia. For they knew that bad men with bad ideas or good men with bad ideas that lead down the road to tyrannies both large and small.

    The other thing I noticed is a total and almost utter lack of discussion about the dismantling of the militia system after the end of the Spanish-American war and the beginning of World War I. Teddy Roosevelt Roughriders were a militia that was organized for an armed by Teddy himself. Now I know that in some states there were organizations that are called militias but what you’ll find they have no legal basis for this name because of laws passed at the beginning of last century. It was these laws that removed the authority for you or me to go out and form our own militia and have it be recognized by state local and federal governments as a valid and legal organization. An organization that can provide peace safety and security for themselves their neighbors their city and the state and federal government. Hope to hear feedback and remember this is only my opinion and I am man enough to admit if I’m wrong or don’t understand something.

    • What laws and what legislative actions removed the unorganized militia from anything?Cite the legislation, show the bills and acts that specifically eliminated the unorganized militia which is separate from the National Guard and any other organized federal military branch.Plus show that such militias were defined as illegal as a result of said laws, dont see it!

      Oh and by the way, 5-4 was on the constitutionality of the Washington D.C. gun ban, not the right to keep and bear arms. The wording refers to all 9 justices agreeing that the right is separate from militia service and always has been.

      Then again the only way anyone can argue that a civilian possesses a firearm only due to the existence of the militia, has to prove the militia existed prior to the armed individual. Good luck with that one!

      • Good point. It decided a law was in violation of the 2A. Even if they found DC could continue to ban guns, that would not make the 2A null and void. To do that takes a CC and 38 states. Not gonna happen.
        The 2A is important but not foolproof. The gun grabbers can have a hundred victories but that still won’t nullify the 2A. What will erode the 2A are byzantine laws and restrictions that have the practical effect of removing guns from the public.
        And from there it can be pushed we would not need the 2A anymore, or at least they can try and convince 38 states and the US congress to go along with it.

  23. At the time our country was founded, the militia was all able bodied men, which would have included all of you and me (assuming we are all able bodied) to defend our nation against all enemies. The passengers on Flight 93 became a “militia” when they thwarted the hijackers’ plans to crash a plane in Washington D.C. This is the “official” definition of the Reserve Militia of the United States:

    All able bodied men, 17 to 45 of age, are ultimately eligible to be called up into military service and belong to the class known as the Reserve Militia, also known as the Unorganized Militia (10 USC). Able bodied men who are not eligible for inclusion in the reserve militia pool are those aliens not having declared their intent to become citizens of the United States (10 USC 311) and former regular component veterans of the armed forces who have reached the age of 64 (32 USC 313). All female citizens who are members of National Guard units are also included in the reserve militia pool (10 USC 311).

    Other persons who are exempt from call to duty (10 USC 312) and are not therefore in the reserve militia pool include:

    The Vice President (also constitutionally the President of the Senate, that body which confirms the appointment of senior armed forces officers made by the Commander in Chief).
    The judicial and executive officers of the United States, the several States and Territories, and Puerto Rico.
    Members of the armed forces, except members who are not on active duty.
    Customhouse clerks.
    Persons employed by the United States in the transmission of mail.
    Workmen employed in armories, arsenals, and naval shipyards of the United States.
    Pilots on navigable waters.
    Mariners in the sea service of a citizen of, or a merchant in, the United States.
    Many individual states have additional statutes describing their residents as part of the state militia; for example Washington law specifies all able-bodied citizens or intended citizens over the age of eighteen as members of the state militia, as explicitly distinct from the National Guard and Washington State Guard.[43]

    Ok, so I’m older than 45 and therefore probably not considered a part of the militia any more, but were we to suffer from an old fashioned land invasion, I’d be fighting next to most of you guys. And I fully expect that our government would be DELIGHTED to have us help defend their butts, while they get the “real” military deployed to relieve us. On Sept. 11, 2001, I was sent home from work early, not knowing if we were going to see 2 attacks on US soil, or 22 attacks or 202. I stopped at several stores on the way home and quietly stood in line at the big “box” store buying ammunition with my fellow members of the “unorganized militia”. We were all readying ourselves to defend the country against an enemy we didn’t know, whose size we didn’t know, and whose agenda we didn’t know. Some folks just bought ammunition, some bought firearms as well. Maybe some of you didn’t know you were part of the militia, but now that you do, welcome!

  24. Here are a few court decisions and founders quotes to ponder regarding this issue:

    For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution. [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec.251 (1822)]

    The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

    The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]

    The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]

    A state may not impose a charge for the enjoyment of a right granted by the federal constitution… The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down… a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’ [MURDOCK V. PENNSYLVANIA 319 US 105 (1942)]

    An ordinance which… makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. — [SHUTTLESWORTH v. CITY OF BIRMINGHAM AL]

    Decency, security and liberty alike demand that government officials shall be subject to the rules of conduct that are commands to the citizen. In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy. ~~[U.S. v. Olmstead, 277 U.S. 438 (1928), Justice Brandeis, dissenting]

    The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. — William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

    There are other things so clearly out of the power of Congress, that the bare recital of them is sufficient, I mean the “…rights of bearing arms for defence, or for killing game…” These things seem to have been inserted among their objections, merely to induce the ignorant to believe that Congress would have a power over such objects and to infer from their being refused a place in the Constitution, their intention to exercise that power to the oppression of the people. —ALEXANDER WHITE (1787)

    The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion. —ST. GEORGE TUCKER’S BLACKSTONE

  25. I have several comments, but they probably will be addressed in Part 2. Therefore, I will hold those comments until Part 2 is posted.

  26. You hit on something in this article. I own a lot of guns and adamantly agree with the 2nd amendment, but I am also absolutely 100% liberal. I get tired of hearing all the BS put out by people that like guns of how liberals suck. I am one, and I believe that the level of people who spend their time saying liberals suck, should be spending more time on WHO likes guns, not their politics (I can’t stand to watch anything with Michael Baine in it, he spends 85% of his time bashing liberals). I am a liberal because it’s important in my mind to make sure WE ALL have food on the table, not just the rich Republicans. BUT I 100% disagree with gun control. I highly suspect there are a lot more people just like me. Quit bad-mouthing us and there might be more NRA members.

    • I consulted an expert and she explained it this way: “Although attitudes about guns, abortion, prayer in schools, free food for the indigent, the benefits of a 15% tax rate on carried interest and most other opinions could be handled one at a time, splitting the country into two opposing camps fighting over confused clusters of issues is better for the owners. The owners are busy enough bribing whomever wins, and they really don’t have time to bother with voters, or with more than two political parties.”

    • “I am a liberal because it’s important in my mind to make sure WE ALL have food on the table”

      Even if you have to steal it from others, right?

      I’m not a liberal or a conservative because I believe in the Constitution and the notion that people are free to make their own choices and suffer the negative consequences that result or the rewards that result. If you make bad choices in life and end up on the streets, that’s your own damn fault. If you get hit with an absurd string of bad luck and end up on the streets, you have the right to ask people for assistance but they are by no means obligated to help you and you sure as hell don’t have the right to steal from them.

  27. Awww…heck, we all know that the 2A was written so the National Guard and the Military could have guns. Just ask liberal Supreme Court justices…silly us!

  28. The First 10 Amendments to the Constitution as Ratified by the States December 15, 1791
    PREAMBLE Congress OF THE United States.
    “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution..”

    Amendment II “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.”

    http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

  29. Ok, I am not the brightest bulb in the box, so I look at things simply. What 2A says to me is that if you infringe on the people to keep and bear arms, a well regulated (and armed) militia would not be possible. A militia is a volunteer force, unpaid and not supplied by any form of government.

    So without a freely armed individual, what would be the second amendment mean?

    Milita, not military. Not the same.

  30. ‘A well regulated militia‘ is an expression of common knowledge as gained during the American Revolutionary War of Independence of the often disastrous consequences of pitting untrained, unorganized and poorly equipped arms-bearing Citizens against an Army of professional soldiers.
    ‘A well regulated militia being necessary to the security of a free state’, are words of wisdom and a warning that circumstances still existed which would necessitate use of a well regulated militia. Among them, further attacks by the British; attacks of a militia from one State against another; armed agents acting on behalf of the Federal government trying to use force of arms to control or oppress the people in any State; and to serve as a deterrent to any group who might attempt to militarily overthrow the civilian-controlled Federal government.
    ‘the right of the people to keep and bear arms’ is, as stated in the PREAMBLE, a declaration of a preexisting right; a clause further restricting those few and limited powers afforded to those in the Federal government; and in intent and purpose, a LAW written into a legally binding contract / compact between the Federal government, those in State governments and the people of the several States…that said right shall not be infringed.
    As a LAW which it represents, the IIA is written specifically against those in the Federal government in order to protect and preserve from any infringement the Right of all American Freemen to keep and bear ’Arms’.
    In fact of history, the Right of all American Freemen to keep and bear ’Arms’
    ( not merely ‘Fire-Arms’ but various types of ARMS ) preexisted and predated every form of American government.
    As a RIGHT which this LAW is intended to protect and preserve, it’s essentially irrelevant whether or not anyone among the people actually owned any ‘Arms’ at all.

  31. The notion that the Second Amendment protects some sort of lesser right does not have much support from history. Justice Joseph Story in his 1833 Commentaries of the Constitution called the Second Amendment “the palladium of the liberties of the republic.” In other words, it was the right that protected all the other fundamental rights. That’s pretty important, no?

  32. Let me suggest that the change in one member of the Court will not likely result i the overturning of Heller or MacDonald. The reason is the peculiarities of the doctrine of stare decisis, a policy of (all) appellate courts from overturning established precedent. A society cannot long exist where the rules are constantly chnaging; so it is better to leave a bad decision in place and work around it thanto reverse that decision. For a full exposition of this doctrine, plese see Justice Thomas’ discussion in MacDonald of the so-called Slaughter House cases and the Fourteenth Amendment. In the Slaughter House cases, the Supreme Court held that the Fourteenth Amendment was not applicable to the states, only to the Federal Government (thus undoing a large measure of Reconstruction policy). Despite the recognition, both judicial and academic, that the case was just plain wrong (and ignored the express language of the amendment itself), as a prior precedent the Court has on many occassions declined to reviseit and overrule this decision. Instead it found an acceptable work-around (as Justice Scalia discusses in he opinion). With this institutional precedent, the liberal side of the Court is unlikely to undo what Heller and MacDonald have wrought.
    The major impact, if such a shift were to occur, is an increased likelihood that the Court will not recognize a right to bear arms outside the home, and in particular, a right to bear concealed weapons. There have been a number of cases already that have upheld restrictions on CCW on the basis that “if the Court had wanted to establish a right outside the home, it should have said so more clearly.” The end result is the upholding of concealed weapoons bans (for which there is ample prior precedent) and or “good cause” restrictions predicated on “public safety.” In fact, although presented with the opportunity to do so, courts so far have deftly avoided considering the 2A in the context of gun laws that, in effect, ban the carrying of firearms outside the home and n large urban areas, i.e., places that ban the open carrying of (loaded or unloaded) handguns and impose sever restictions on the ability to obtain CCWs, such as in New York City, New Jersey, Illinois, Maryland, and (parts) of California. [As to this latter, the carrying of exposed handguns, with exceptions, is banned in all incorporated areas, and LA and SF don’t issue CCWs–but CCWs issued by other California counties are still valid.]

  33. The problem is that once you allow the Constitution to be “interpreted”, it ceases to have any meaning because you can “interpret” it to say anything you want.

    As for what the 2nd Amendment means? I’m fairly certain that it’s covered in the Federalist Papers, which explained the reasons why the Constitution needed to be ratified by the colonies.

    As for “If they ever become the majority, this will be their interpretation of the Second Amendment”, well, I’m hopeful that if the government ever tried to seize that power that Americans would remember the testicular fortitude that they used to have 150 years ago and would fight and die to defend their rights.

  34. If the right to self defense is fundamental, and the human mind creates tools to fulfill it’s needs which nature has left it short of (we are relatively weak, not real fast, and fingernails make a poor substitute for claws and fangs) in just what way Is the right to arms not fundamental?

    Now before someone says “Does that mean an individual should have nukes?” Of course not, such a weapon was designed and intended to be a weapon used to defend the masses, whereas a handgun (or long gun) was intended to be carried and used by the individual. To say that one has a fundamental right to self defense yet does not have a right to arms is the same as saying that one has a right to free speech but cannot have pencils, pens, typewriters, word processors, ink, paper or anything related to communicating the speech. Beware the slippery slopes you would create.

  35. A few thoughts . . . as responsible firearms owners and defenders of the Second Amendment I can think of no better way to do that then being the best examples and ambassadors of this to those who think negatively about firearms. Engage them with a smile and an invite to the local range, buy them lunch, have a discussion, you will win them over. Teach them, in doing that you will put them at ease.

    As for the wording of the Second Amendment, there will come a day when the rubics cube of the government shifts into place and we get to fix it. Remember Progressives have wanted universal health care for generations – the second that they had the right bodies in place they went for it, and won! We must demonstrate the same resolve and patience in protecting our human right to defend the lives of our family and our nation by giving pause to those who might get tempted by our temporary political insanity.

    “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.”

    We The People are the militia.

    Our purpose is to keep our States free in the extreme and highly unlikely cases think “life insurance”

    To do this we need firearms that are capable to achieve this and we must maintain a skill level so we can deploy them with enough force to maintain that freedom.

    Under no circumstances my those arms be seized.

    We are winning this. We win when we tell the truth and do the right thing. Keep winning!

  36. I have the right to own a handgun, a rifle, an RPG, a machine gun, a tank, a battleship or a nuclear bomb. Do I have the means?

  37. Here are a few court decisions and founders quotes to ponder regarding this issue:

    For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution. [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec.251 (1822)]

    The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

    The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]

    The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]

    A state may not impose a charge for the enjoyment of a right granted by the federal constitution… The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down… a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’ [MURDOCK V. PENNSYLVANIA 319 US 105 (1942)]

    An ordinance which… makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. — [SHUTTLESWORTH v. CITY OF BIRMINGHAM AL]

    Decency, security and liberty alike demand that government officials shall be subject to the rules of conduct that are commands to the citizen. In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy. ~~[U.S. v. Olmstead, 277 U.S. 438 (1928), Justice Brandeis, dissenting]

    The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. — William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

    There are other things so clearly out of the power of Congress, that the bare recital of them is sufficient, I mean the “…rights of bearing arms for defence, or for killing game…” These things seem to have been inserted among their objections, merely to induce the ignorant to believe that Congress would have a power over such objects and to infer from their being refused a place in the Constitution, their intention to exercise that power to the oppression of the people. —ALEXANDER WHITE (1787)

    The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion. —ST. GEORGE TUCKER’S BLACKSTONE

  38. “The problem is that there is no higher authority than the Supreme Court.”

    Actually, no… the people of the United States are the highest authority. The Supreme Court merely has permission to act in our name and with our blessings.

    “If they were to shift their position, the only recourse we would have as gun owners would be to convince Congress to act”

    Again, no. The permission and blessings can be withdrawn from the Supreme Court. It will undoubtedly get messy at that time, but the Second Amendment was not put into the Constitution to protect our right to hunt deer.

  39. The author needs to REREAD (slowly this time) the Heller decision. He states:”Unfortunately, the wording of the Second Amendment is vague. It does not say, “The rights of the people to own and carry firearms shall not be infringed.” No, it says, “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.” So what does that mean?”

    Well, Jim, it isn’t as confusing as you think. You see some of us actually paid attention in grade school grammar class. The so-called militia clause that has you all confused does not alter the operative part of the sentence, that being “the right of the people to keep and bear arms shall not be infringed.”

    As the Supreme Court has already ruled, that is the only part that has force of law. The first clause merely gives a reason (and not the only reason) why the second clause is needed. It does not restrict it. The Supreme Court has clearly held that one does not have to be a part of a militia to exercise the right to keep and bear arms. And in case you can’t check a dictionary, “keep” means to own and have in one’s possession, and “bear” means to carry.

    To quote directly from the actual holding of the court (not dicta) in the Heller decision:

    “Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditional purposes, such as self-defense within the home. (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.”

    I trust your confusion is now eased.

  40. 1freeman has the best compilation of information on this subject that I have seen. I have not had time or inclination to research in those areas because I believe personally that the Founders did explain their reasons for the Second Amendment and that it refers to “the people”, who CANNOT be other than the every day citizen, going about his life as anyone would. Should anyone bear arms with CRIMINAL INTENT he can be dealt with in ways other than putting the blame on the weapon he may have used. That’s why we have laws specifically enumerating certain crimes, regardless of the method of commission.
    That’s why people like the Brady Bunch fail to recognize that laws don’t make people behave, laws only deal with the perpetrator. In recent decades, shortsided lawmakers have tried to regulate behavior by restricting access to weapons or other instruments they regard as “dangerous”. Around the world, there are many examples of laws preventing personal self defense, you need look no further than Mexico and Canada (and New York, New Jersey, California, Illinois, Maryland, D.C. etc). Several days ago I heard about the beginnings of discussion in Mexico about the possiblity of once again allowing private citizens access to firearms for protection against the horrible murders that have occurred there recently. This can only lead to a reduction in these murders, it will take a while to get going but I would look for a big improvement in the lives of ordinary Mexicans as a result.
    1freeman, thanks for all your extracts which prove undoubtedly that over the years we have allowed gun control to get totally out of hand, and there should be NONE at all. Deal with the miscreants, NOT innocent citizens.

  41. The big problem citizens face is they look to the Constitution and law for the rights (and permission) to be armed for their own defense. Bad guys ignore all this and arm up anyway.
    Sadly, it’s been proven that when a government strips the tools and right of self defense from it’s people under the guise of assumption of protection the people lose. About all that can be done is mop up after the fact, and in some places they don’t even do that right. Violent criminals get out of jail to harm again with regularity.
    Our government at all levels has armed up quite well and now no longer fears it’s people. Very little stands in the way of disarmament and enslavement. I hope it doesn’t happen in my lifetime, but it will.
    A constitutional form of government only works when it is respected by all. Enough people get together and convince even more people to go their way and be Progressive about things and before you know it there are no hard rules, just temporary rules for whoever gets 50.1% in an election. And if that doesn’t work, dispense with elections.
    But first you have to disarm everyone and show through force that resistance is a waste of time and health.

  42. “On the other hand, with respect to the Second Amendment, each state makes its own laws regulating a person’s right to carry a firearm. So, from at least one point of view, it can be argued that the First and Second Amendments are not on the same level. One is actively protected by the federal government and the other…not so much.”

    That’s because you don’t understand the system. The states are still sovereign, even though they don’t act like it. Civil rights are not the same as inalienable rights (and are also known as “substantive” rights).

    The Federal government is supposed to be the external interface to the sovereign states. It finally breached its last limits through corrupt Supreme Court decisions under FDR regarding the commerce clause. The original intent of the commerce clause was to prevent trade wars between the states, not regulate surgical scalpels so they can control how surgery is performed or any of the myriad purposes to which the clause is abused. Read The Federalist Papers if you do not believe me.

    The whole incorporation of rights is all about reaching into the states to give rights to people who were gifted citizenship. Dred Scott has NOT been overturned and people still become Federal citizens. I am not a Federal citizen (or am I a “sovereign” citizen, which is silly). I am a citizen of my state. If you don’t understand this, then you need to review how the 14th Amendment works. Title 42 US Code Section 1981 shows the original civil rights awarded to people who were gifted citizenship after the Civil War. The phase “as is enjoyed by white citizens” demonstrates the different types of citizenship in this country.

    Each state makes gun laws in accordance (well, more or less) with its constitution. The Supreme Court ruled the Second Amendment only limits FEDERAL action (see Gun Control & Gun Rights by McClurg, Kopel and Denning). Funny how that worked out since nobody can carry on Federal property or DC. Some states, such as New Jersey, have NO right to keep and bear arms. Arms are “subject to the police power” in Illinois. See http://www2.law.ucla.edu/volokh/beararms/statecon.htm for details.

  43. My Opinion: The Federal Constitution was intended to accomplish two things. First, it provides a framework for the organization, obligations, powers, and limits of the Federal Government. Second, it guarantees certain numerated (first ten amendments) and unenumerated rights to be enjoyed by ALL citizens regardless of which state they reside in. When each state joined the union, it agreed to recognize those Federal rights guaranteed for all citizens of the entire United States. Noteworthy: The Constitution of my state (Washington) formally declares that the US Constitution “is the law of the land”. We (and 46 other states) also have a corollary of the 2nd Amendment. The problem is that, alone amongst all of our guaranteed rights, the one to “keep and bear arms” is the one which We the People have accepted artificial limits to based only on some (vocal) people’s “feelings” about what they think others “need” or “don’t need” and “should not have”.

    • Buchanan mentions interest on the debt as a fifth major aspect of the looming federal bankruptcy, and expects interest payments to be the first to be let go. Inflationary money printing, as Celente and others predict, may be followed by continued economic decline and collapse, even a new war or two to justify international default, before or after the fact. Thanks for sharing.
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  44. Pro gun positions are on the rise across the country and we need to encourage these movements, but we have to be careful not to be too heavy handed. Remember that our opponents want to cast every one of as as a bunch of semi-psychotic killers in waiting, so we need to show our fellow citizens that nothing can be further from the truth. Thanks.
    Regards,
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  45. “Pro gun positions are on the rise across the country and we need to encourage these movements, but we have to be careful not to be too heavy handed. Remember that our opponents want to cast every one of as as a bunch of semi-psychotic killers in waiting, so we need to show our fellow citizens that nothing can be further from the truth.”

    Gunowners have already been branded as “pre-terrorists” by the National Fusion Centers and DHS. We are already considered enemies of the state, especially if an individual gunowner is religious or speaks about “rights” and “the Constitution”. Now it’s just a matter of them implementing policies and a few new laws in order for them to go after us in various ways. Such programs are not necessarily violent, but are instead intended to reduce gun ownership. Programs like ObamaCare can be used to change healthcare plans, getting doctors to ask questions about guns (this one was stopped), influencing insurance companies, and so forth. Obviously, they’ll do a few “take down” raids of “militias” and “extremists” to scare the general population. They want to “create issues” with guns so they can manufacture a justification for some new bill in Congress.

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