The Second Amendment: A Primer

Reader David F. Hammack writes:

The Constitution as a whole, including the Amendments, must be viewed through the lens of their time to be understood. But understanding the context of its creation isn’t as easy as it may seem.

The Second Amendment, for example is a beast. It’s been interpreted by the courts, including the Supreme Court, for the most egregious of political reasons, to distort its original meaning.

I’m not a Supreme Court Justice nor an attorney, and I don’t play one on TV. It’s not my intent to refute Cruikshank, but to offer a fresh historical perspective on the meaning of the Second Amendment

The Militia – What “They” Said

James Madison: “A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country.” (1st Annals of Congress, at 434, June 8th 1789,

Rep. Tenche Coxe of Pennsylvania: “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

Patrick Henry: “Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our possession and under our own 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?” 3 Elliot Debates 168-169. “The great object is that every man be armed. Everyone who is able might have a gun.” 3 Elliot, Debates at 386.

Rep. Elbridge Gerry of Massachusetts: “Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” (spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789.)

Thomas Jefferson: “And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms… The tree of Liberty must be refreshed from time to time, with the blood of patriots and tyrants.”, letter to William S. Smith, 1787, in S. Padover (Ed.), Jefferson, On Democracy

Thomas Jefferson: “No free man shall ever be debarred the use of arms.”, Proposal for a Virginia Constitution, 1 T. Jefferson Papers, 334 (C.J. Boyd, Ed. 1950)

George Mason: “I ask you sir, who are the militia? They consist now of the whole people.” (Elliott, Debates, 425-426)

Richard Henry Lee: “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…” (LIGHT HORSE HARRY) LEE, writing in Letters from the Federal Farmer to the Republic (1787-1788)

Thomas Paine: “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 well 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 one half the world deprived of the use of them…” I Writings of Thomas Paine at 56 (1894)

Justice Joseph Story: “The militia is the natural defense 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.” – Joseph Story. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

Justice Joseph Story: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic…”

Well Regulated?

The phrase “well-regulated” was in common use long before 1789. It remained so for a century thereafter. It referred to the state of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected.

Establishing government oversight of the people’s arms was not only not the intent in using the phrase in the Second Amendment, it was precisely to render the government powerless to do so that the founders wrote it.

So, if something is “well regulated,” it is “regular” (i.e. a well regulated clock; regular as clockwork).

In the 18th century, a “regular” army meant an army that had standard military equipment. So a “well regulated” army was one that was well-equipped and organized. It doesn’t refer to a professional army. Seventeenth century folks used the term “standing army” or “regulars” to describe a professional army.

Therefore, “a well regulated militia” only means a well-equipped militia that was organized and maintained internal discipline. It doesn’t imply the modern meaning of “regulated,” which means controlled or administered by some superior entity.

The following are taken from the Oxford English Dictionary and bracket in time the writing of the Second Amendment:

1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world.”
1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”
1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”

Arms – weapons considered collectively

There is a lot of misunderstanding of this term, even among the gun community. If you read the Second Amendment by itself, it’s easily (and often) misinterpreted. But if you study the the supporting documents and the ratification debates, it becomes much clearer.

Nonetheless, the keys are in the text of the Amendment itself. A few definitions first to promote understanding:

implements of war, munition, weaponry, weapons system

ammo, ammunition – projectiles to be fired from a gun

armament – weaponry used by military or naval force

bomb – an explosive device fused to explode under specific conditions

Usage – A couple of notable quotes

Niccolò Machiavelli: The main foundations of every state, new states as well as ancient or composite ones, are good laws and good arms. You cannot have good laws without good arms, and where there are good arms, good laws inevitably follow.

Adolf Hitler: The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so.

Actually, the modern definition still applies, as the Founders were well aware that military science was rapidly evolving, particularly in the field of arms. They specified arms to leave interpretation as broad as possible, but there are caveats.

“Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…” [Tenche Coxe, Congressman, Pensylvania]

Clearly their intent was that citizens be armed with military grade weapons.

It seems pretty clear cut, but in analysis, there are inherent limitations on both government and the people.

The prefatory clause, “A well regulated militia being necessary to the security of a free state,” is a justification clause and defines a limit on what type of arms. It does not say, “Because the People need to hunt for food, and slaughter live stock” or “As the People must be secure in their person and home.”

Though these are good and sensible reasons. While they were certainly considerations, it specifies the militia as defined above, so clearly all arms, up to and including military grade weapons.

The operative clause: the right of the people to keep and bear arms shall not be infringed.

Again, note the wording – keep and bear arms. These two terms are inextricably linked. It inherently limits the arms you may keep, to the arms you can bear. In other words, such arms as an infantryman or “soldier” carries; at the time, a musket or rifle (with bayonet), with sword, and or pistol.

Today, common, infantry type weapons include (but are not limited to) pistols, semi-automatic rifles, burst fire rifles, and fully automatic rifles of a caliber used by the individual infantryman.

This specifically excludes crew served weapons such as heavy machine guns, mortars, artillery, tanks, anti-aircraft guns, missiles (other than man-portable), fighter jets, etc. because a single militiaman cannot bear them by himself.

Just as the Federal government can commission privately owned ships, by a Letter of Marque and Reprisal, as ships of war (privateers), the governors of the States can commission officers to establish, and equip a militia unit, with the crew served arms needed to wage war.

What to Conclude?

Having properly defined “militia” as used in the vernacular of the Founders, and establishing the meaning of the phrase “well regulated” as it was used at the time the Second Amendment was written, it seems the “well regulated militia” was meant to be “the whole people”, all citizens, who, at need, could work together, and as effectively as a professional army, with the armament they provide themselves.

To do that, the arms and equipment in their possession, part of their “regulation”, would be arms and equipment equal to that of any army they may face. None of this seems to support the interpretation that the Second Amendment applies only to the National Guard, or a state sponsored, organized militia.

As to what constitutes arms…

This analysis must conclude that the government shall not infringe (in any way limit) the right of the citizen to own any weapon they can use effectively by themselves, as individuals, or carry them, as is fit.

While the prefatory clause is a justification clause, it is not the only justification found in the supporting documents, but one of several. It was seen as the most important, and justified the broadest possible latitude in the types of arms the People could own.

A hunting or slaughter weapon might or might not be effective for personal or home defense. A weapon suitable for home defense can also be used to hunt, and slaughter livestock, but not optimal in armed conflict. A weapon suitable for military use can be used for all of the above.

This does not limit one to “military grade” weapons only. Any weapon can be used effectively in combat. It may not be a “first choice” weapon, but it can certainly be used effectively if it is all you have; certainly more effectively than nothing at all.

Even if the Constitution were amended to preclude government access to the militia, this would not affect the Second Amendment.

The “militia clause” of the Second Amendment was not the “reason” for the amendment. It simply represented what the Founders saw as the most important of many reasons. Actually, the Second Amendment could be seen as guaranteeing The People the right to form militias, irrespective of government control.

The Second Amendment was founded on this principle, “Protestants may have arms for their defence suitable to their conditions and as allowed by law;”, from the Declaration of Right, commonly known as the English Bill of Rights.

Notice there is no mention of the militia, but this guarantees the right of the English people to have “arms for their defence”. Explicit with the “right to have”, is the right to use in your defence, therefore to carry with you if you felt you may be threatened.

Since the right to own and carry firearms was already commonly understood, but the British Governors had elected to deprive them, in some very important cases, of the means to equip their militia, the Founders saw this as the most likely abuse of power regarding firearms, since the right to own and carry arms had been undisputed for 100 years.

It did not deny the ownership and use of of arms for defense, and in fact states that the right to own and carry arms, even for use as a militia, shall not be infringed. Note another difference to the clause from the Declaration of Right…. “and as allowed by law” was specifically addressed by, “shall not be infringed”.

While the King could make laws regarding ownership and use of arms, Congress could not.

What Does It Mean Today?

Modern language only vaguely resembles the language of a couple of centuries ago. This is “linguistic drift”. As society changes, so does language. Words take on new meanings, or even express different ideas.

The Heller decision was the first SCOTUS decision that actually took a look at the basis of the Second Amendment, that actually parsed the arguments of the authors, and the delegates to the ratifying conventions.

The Court’s conclusion was inescapable. The only reason the opinion didn’t go any further than it did, was because the question before the court was very narrow.

The words in the Constitution define the concepts at that time. That specific concept was agreed to by all parties to the document. This was a contract agreed to on behalf of the representative’s constituents. While the meaning of the words may change over time, that concept remains the same. The concept, described by the words at that time, is the law.

As language changes, so does society, but, the law does not. That is why it is the duty of Congress to write laws pursuant to the Constitution, and as society grows, and the people, in great enough numbers, feel the Constitution no longer addresses the needs of society, to amend the Constitution.

Until that happens, regardless of what the words may mean today as opposed to the time when they were written, those concepts, agreed to by all signatories, shape the law.

The Constitution is a legal document just as a land survey plat is a legal document. Both are defining legal constructs. A piece of real estate is defined by boundaries. You will never see a parcel of land defined with a stream or river as a boundary. A stream may run congruent with the boundary, but markers are set to establish the boundary. Over time, a stream may change course.

If your boundary is on a stream, when it moves, do you suddenly have less land than you paid for? Of course not, your land still extends to the markers set at the time of the survey. This is why the concepts of the Constitution, not modern definitions of the words, define the law.

comments

  1. avatar former water walker says:

    OK. Good if tediously long overview. How about “because FU and “come and take it”…

    1. avatar Jack Clancy says:

      Exactly what I was thinking.

      Molon labe

      According to Bearing Arms website there are 600 million firearms and 25 trillion rounds of ammo in the hands of legal law abiding citizens.
      https://bearingarms.com/jenn-j/2017/06/27/more-than-600-million-firearms-in-america/

      1. avatar CesCalifornia Richard says:

        Thanks for mentioning the 600 million firearms stat. I got corrected earlier today for using the 20 year old 350 million stat.

        1. avatar Sam I Am says:

          “Thanks for mentioning the 600 million firearms stat.

          Kinda hard for that number to be a statistic; no reliable means to determine who has guns, and how many. It is a projection, based on a set of (unexplained assumptions). When talking to anyone other than fans of guns, an estimate of between 200 million and 300 million might be more believeable,

        2. avatar 16V says:

          Sam I Am, That 600MM estimate is based on some good semi-scientific research, much better that the ever-present “300MM” number anyway. Which has been around for more than a decade. I think the actual calcs were done by a chap at Ammoland, IIRC.

          Looking at how the numbers were derived, I tend to lean more towards the bigger number than the smaller number that has been the same forever. YMMV. I do agree 600MM seems a bit high, and is likely more like 450-500MM, but 300MM is a joke.

        3. avatar Sam I Am says:

          My comment was that there is “no reliable” way to obtain the real number of guns and gun owners. As you noted, the ESTIMATE is based on “semi-scientific” methods. such a qualifier means, “educated guess” or SWAG. To use the 600 million number in a environment where 300 million is not disputed by the left, re-opens the door to yet another irrelevant argument over the exact number. It would seem most people can understand and accept a number of guns roughly equal to the population (or about 3 guns per adult). Blowing up the numbers in an attempt to “normalize” gun ownership only appeals to those who oppose gun control already. I just don’t want to offer up a free kick to the other side.

        4. avatar California Richard says:

          Well, Im sticking with the 600million number regardless if for no other reason than the statement, “there are enough guns to arm every man, woman, and child,” is false. Now a true statement would be, “there are enough guns for every man, woman, and child to shoot Desperado-style.” Or at the very least enough for everyone to do transition drills.

      2. avatar Higgs says:

        They use a decent method for coming up with the number of guns manufactured. I think the high end is way to high.

        I don’t think they account for the number of Ncis checks that are for milsurp, police trade ins, or just used sales.

        They do not account for weapons that no longer function. How many Jennings, Rolms, early chicom shotguns, and just old rusted guns are no longer working or in a landfill or the bottom to the lake.

        Not sure they accounted for guns that our government shipped Out to help out allies ( nor the guns shipped our illegally to our enemies).

        I find it very easy to believe there are north of 400 million guns in the US. Given the number of NCIS checks in the past decade and a starting point of 300 to 330 million guns, Its real easy to get north of 400 million.

        1. avatar Big Bill says:

          I realize that the “NCIS” checks you speak of are actually a typo of NICS. 🙂

          However, the actual number of functioning guns in the hands of people within our borders will never be known. Before NICS checks were the law, no accurate number was known, because the gun makers were very good at not letting anyone know just how many guns they made or sold. Even annual reports (which not all had to make public, because not all were public corporations) only covered the financial end, not actual production numbers.
          Even now, because of illegal importations (the Philippines accounts for a goodly number each year) it’s impossible to give more than an estimate. Of course, some guns are discarded because of some loss of function, and there is no requirement (in most states) to report this.
          It’s impossible to give an accurate estimate (?), but it seems to me that the number must be north of 400MM.

        2. avatar TX_Lawyer says:

          I heard their were about 300 million guns. Then I heard that 100 million guns were sold. That would mean that there are about 400 million guns. I can’t remember the time frames, but my point is that I think 350 million would be on the low side of the estimates.

  2. avatar shoeless joe says:

    Excellent treatise! Everyone who is concerned about the Right to Keep and Bear Arms (both for an against) should read and understand this.

  3. avatar Joe R. says:

    IF THE CONSTITUTION SERVES US – GREAT.

    IF NOT – F IT ALL, BUT ALL COMERS AND TAKERS SHOULD THEREAFTER ASSUME THAT WE WILL STILL FULFILL THE 2ND PARAGRAPH OF THE DECLARATION OF INDEPENDENCE TO IT’S FULLEST POSSIBLE EXTENT AND TO THE LAST MAN (AND possibly selfish intents and purposes).

    THE SECOND AMENDMENT IS MERELY A WARNING. HISTORY IS LITTERED WITH OTHER COUNTRIES WHO HAVE CRASHED AND BURNED IGNORING SIMILAR PRINCIPALS.

    HEED

    THE

    MF

  4. avatar Hellguard says:

    Articles like this are why i keep comung back to TTAG.

  5. avatar Jay in Florida says:

    To me the 2nd has always been a plain direct document.
    “We” thats us folks The People.
    Simply put we are allowed any arms we can bear. Carry” if its a bazooka so be it.
    Defend ourselves as “we” me sees fit. Using anything I can carry to do it.
    The Gubbermint and state has no right to interfere with my decisions made to carry whatever I choose to. Where I carry it yah maybe.
    Now the Gubbermint and State can punish me. If they can prove Ive misused whatever weapon Ive chosen to arm myself with. Thats fair enough to me.

    1. avatar anonymoose says:

      A person can lift a Mk19 automatic grenades launcher, and the Revolution was fought with privately owned artillery and warships, so why the heck should we be limited to small conventional firearms like GPMGs and handheld rocket launchers? If you can drive it or fly it or sail it, etc, you should be able to own it. Bombs should be regulated though because they are purely offensive weapons and are imprecise.

      1. avatar SurfGW says:

        Where can I buy and shoot my own 155mm M-777 howitzer? I am itching to shoot it off for 4th of July once I scratch together the $2 million

      2. avatar Lance F says:

        Keep and bear were not linked. The men who kept (funded) priveters (personal battleships) did not go out and fight on them. Kept has to do with funding/outfitting. The constitution specifically allows private citizens to own (keep) privateers during wartime.

        1. Exactly what I came to say. That was the one line that I disagreed with.

        2. avatar Steve says:

          The ‘keep’ part is not dependent in the narrative in that we can ‘keep’ other armaments (buy, own, outfit) but not ‘have to bear’ (can’t bear a tank example) but, they are ‘linked’ for without ‘keep and bear’, who do you grovel to when you want to ‘bear’ your arms and what permissions would then be set/ Oh right, same as we have today, we need permissions in many states to ‘keep and bear’ let alone ‘bear’.

        3. avatar TX_Lawyer says:

          At least under either interpretation, we can all have suitcase nukes. One can keep and bear one of those.

          I believe the “and” interpretation of the 2A is based on a result in search of a reasoning that doesn’t meet the result. The goal is to keep crazy destructive weapons out of the hands of crazy billionaires. Instead of just saying, no nukes and such, it says here is a reason why no nukes and such.

          And because of the way the courts have always worked, you don’t need to limit the 2A to limit its effect. Even if the courts were to read the 2A to protect your right to nukes, aircraft carriers, or even just artillery, the courts are going to say that the government can regulate your right to such. Whether it’s under strict scrutiny or something else. Strict scrutiny originated as a limit on rights in in the late 1950’s. (The Origin of the Compelling State Interest Test and Strict Scrutiny). Before that, rights were still limited.

    2. avatar ThomasR says:

      Yep. Cannon and mortars with explosive rounds were owned by private citizens, and were used in the revolutionary war. Even today, a private citizen can own tanks, artillery, crew served machine guns, vehicle mounted miniguns, and combat aircraft. If you can afford them, you can own them. .

      Any other interpretation makes no sense if the militia was supposed to be a natural counter to an authoritarian state.

      1. avatar Big Bill says:

        The majority of the heavy weapons and vehicles you mention can be owned if they are rendered unusable.
        I doubt that private citizen owns a minigun here in the US, that actually works. I know we’ve seen them on various shows (Mythbusters, anyone?), but they are demonstration units owned, in that case, by Dillon Aero, in Scottsdale, AZ, which is why we usually see it in the Sonora Desert. Dillon Aero makes them (among other makers of that type of gun).

        1. avatar Is a ThomasR says:

          Sorry Big Bill. But Google Knob hill machine gun shoot. They have a meet every year with privately owned machine guns, which include mini guns, and various other crew served machine guns. The issue for private citizens is that they have to be registered with the BATF prior to 1987. Which makes them VERY expensive to own.

          With registration and permits it is possible for a private citizen own an operable tank with a operable main gun, but they again need to be permitted by the BATF as a destructive device and each round needs a permit. It is very expensive, but doable.

      2. avatar Roymond says:

        Not so, Thomas. It’s entirely reasonable to limit what an individual may have to the (common) arms of the individual soldier. That doesn’t mean citizens can’t have mortars, howitzers, attack helicopters, tanks, fighter jets, or even aircraft carriers for the simple reason that there is more than one citizen. If one individual is limited to individual arms, then it stands to reason that two individuals aren’t limited to individual arms, but to arms for either individuals or for two individuals. Scale that on up, and plainly four individuals may have a tank, and 5,680 individuals may have a Nimitz-class aircraft carrier with all its attendant aircraft.

        1. avatar ThomasR says:

          Hmm, Roymond. I don’t see that we have a difference of opinion. We basically agree about our main points. It is that private citizens should be able to, and do, with enough red tape, currently own many of these armaments of war that can’t be only carried on the back of an individual soldier.

  6. avatar NorincoJay says:

    I see the constitution as a goal something to reach for. A guide to form a more perfect union. We didn’t have one at the time, nor do we today. The founders laid out what we need to do to keep trying to reach the unattainable “perfect union.” The more we stray from our guiding principles laid out for our country in the constitution the worse our country will become.

    1. avatar Steve says:

      Like a set of by-laws for a corporation the Constitution frames the nature of the Government. It frames what the government can and cannot do. 2a is a good example of the way the Constitution is misrepresented now by a government that believes its own inertia is more than its own founding principles. Arms means any ‘arm’ and shall not be infringed does not mean that we must fight against every regulation for whatever false narrative (save the children by god!!) that limits to what we can carry. It means that the Government cannot limit what we can carry and each of these regulations is in direct opposition to 2a, direct opposition to the Constitution. The Government may regulate as much as they want as to where an arm may be fired (save for self defense) and maybe in some cases where that arm may be carried but, all these regulations about what type of arm we can keep (own) and therefore carry should be sued off of the books.

      1. avatar TX_Lawyer says:

        A better analogy would be a companies articles of incorporation (or charter or whatever it’s called in that jurisdiction for that entity). Bylaws are more like statutes. They are generally easier change.

        Please forgive the pedantry.

  7. avatar Roger says:

    Awesome background and presentation. Clearly and consisely put forth. I encourage others to use for discussion and outreach to those that deny the meaning and purpose of the 2nd amendment. Some will be a lost cause for now, but it could plant a seed of understanding with others.

  8. avatar Geoff PR says:

    “Something that was well-regulated was calibrated correctly, functioning as expected.”

    Proof of that is on a grandfather clock, the pendulum is a threaded rod, and the name of the nut at the bottom that adjusts the speed faster or slower by raising or lowering the pendulum weight is…

    *THE REGULATOR*

    Dig up tall clock repair books from the 1700s and see for yourself…

    1. avatar TX_Lawyer says:

      “Dig up tall clock repair books from the 1700s and see for yourself…”

      Can’t I just take your word for it?

  9. avatar Darkman says:

    All must remember that the Declaration of Independence,the Constitution and the Bill of Rights are merely pieces of paper. Without the Will of the People they mean nothing. As with all pieces of paper they can be altered, reinterpreted or simple ignored. Freedom and Liberty are fragile things. If not given their due like all things it will wither and die. Those that choose to learn understand why this nation was established. Understand the Sacrifices that were made as well as the Sacrifices needed to Preserve the Freedoms that were Given to the People. Now as then there were those who were happy with the status quo. Weren’t willing to take on the task of fighting for something bigger than themselves. Which person are you? That is for you to choose. I make no assumptions about anyone. I. simple know who I am and What I stand for. Freedom…If Not NowWhen… If Not You Then Who.

    1. avatar David Hammack says:

      This exactly why I wrote this article. If *we* don’t know what was guaranteed to us, we don’t know what they are taking away, have taken away, and what to fight to regain.

  10. avatar Nanashi says:

    If Florida’s state legislature wasn’t in session so little of the year, I’d be pushing for a resolution condemning Miller as a fraudulent case.

    1. avatar FedUp says:

      The only thing fraudulent about Miller was the US Attorney’s false claim that short barreled shotguns were useless in military conflict. What I can’t figure out is how he got away with it.
      Either he raised that argument (and had it refuted) at trial, or he was prohibited from raising it on appeal, you appeal a decision based on the facts that were placed before the trial court, you don’t appeal your own losing strategy by saying “I argued it wrong, I want a do-over with my new argument”. If evidence that SBS were useful in trench warfare was presented at trial, then that information was on the record for SCOTUS to review. If the subject didn’t come up at trial, it was too late to raise it for SCOTUS appeal.

      That said, why wasn’t the Miller decision written up as a default judgment? “Since Joe Miller failed to enter an appearance on this matter, we find for the prosecution, but it doesn’t mean jack squat as precedence for future decisions”.

      1. avatar Nanashi says:

        And that it was decided with no defense present.
        And that Heartsill Ragon helped write and push for the law but never recused himself
        And that Miller was denied his choice of plea
        And that denied his choice of attorney
        And that his lawyer abandoned his clinet

        A SINGLE one of those things would get get any other case thrown out, but this was the same court that didn’t think much about the 13th amendment.

      2. avatar SurfGW says:

        Because Masterkeys and M26 MASS shotguns used in combat are “entry tools” not shotguns. Does that mean we can own them?

    2. avatar Bruce says:

      Yes, Miller was badly decided because it rested on the theory that firearms used by the military could be excluded because they weren’t used by the military. But I think that two other points are relevant. First, FDR had recently broken the Supreme Court to his will, after trying to pack it, by threatening to increase its membership until he had a majority, after it balked him by rejecting a lot of his early legislation. In response to the gangster era, where the gangsters were outgunning the police with their easily acquired fully automatic weapons (Thomsons, BARs, etc), the NFA (National Firearms Act) was enacted to keep esp deadly firearms out of their hands. The St Valentine’s Day Massacre and the like were recent and still in the minds of the public. The NFA was going to be protected by the Supreme Court, and not overturned, hell or high water, as they had started doing with most of FDR’s other legislation. Looking back, Miller may be seen as being as narrow as could be hoped for precisely because of its horrible procedural position. Imagine, maybe, how much worse it could have been if they upheld the NFA without the crutch of non-military weapons.

      Secondly, Miller can be, and is being, flipped, to limit gun control. How do you justify banning magazine fed medium caliber semiautomatic rifles and carbines identical to our main battle rifles for the last half century, except for the lack of select fire, under Miller? How can they be said not to be in general use by the military? Ditto for handguns – how do you ban, for example, the exact same magazine fed semiautomatic handguns issued to our troops now for over a century, under Miller?

      1. avatar David Hammack says:

        A good analysis, but the NFA ban on automatic weapons had at least as much to do with the “Bonus Army March” in 1933. Another flaw of the Miller decision was that it completely ignored that under Common Law, the rights of The People to own and carry arms for personal defense had been established over 100 years prior and would sensibly be incorporated in the Second Amendment. I find it highly unlikely the Founders would have guaranteed the the nation they founded *fewer* rights than they, themselves. enjoyed.

  11. avatar peirsonb says:

    With you on everything except the limit to arms carried by a single individual. It doesn’t say that “inherently” as you claim.

    The subject of the sentence is the people. Plural. Therefore the arms would be limited to what multiple people could bear.

    If it were limited to single operator weapons then, at the time it was written, cannon would have been excluded. A militia whose purpose is the defense of a free state would have had no chance standing against an enemy armed with cannon. Therefore they would not only have NOT been well regulated, they’d have been completely ineffectual.

    Otherwise, I dig it.

    1. avatar Sam I Am says:

      Canon. Yes. This. What he said.

      There is no adult reasoning that would conclude the founders would put the militia (the bastion against government arms) at decided military disadvantage to the government.

      Nice try, Mr. Hammack.

      1. avatar FedUp says:

        Back in the day, you didn’t need to commission your vessel with the government to have the RIGHT to outfit it with cannon, nor did you need gov’t approval to own field pieces. Armed private ships (fully sanctioned under the 2nd Amendment) were the 18th century equivalent of today’s fighter-bombers.

    2. avatar tfunk says:

      Zactly

    3. avatar Roymond says:

      “The subject of the sentence is the people. Plural. Therefore the arms would be limited to what multiple people could bear.”

      Yes, and that solves the crew-served issue. essentially, an individual is limited to the (common) arms of the individual soldier — but a pair of individuals is not so limited; being two, they may use arms suitable for two. And thus it goes; a hundred individuals may use arms suitable to a hundred, and 5,680 individuals may have a Nimitz-class air craft carrier.

    4. avatar tmm says:

      This is a very well written article, but I think it gets lost around the part where it applied to only weapons you could carry (absurdum notwithstanding). I would at least like to see a bit more background on the reasoning other than on the crux of the word “and.” I just think “and” was necessary so that both rights are preserved, not that you had to conceivably perform both to keep. Could not a ship’s captain keep a cannon to protect his ship? Could not a town keep a cannon to protect it from the military? Molon Labe.

    5. avatar David Hammack says:

      Actually, after I wrote this, I was going over the research in and reasoning in the Heller opinion and found that Justice Scalia arrived at the same conclusion. While there are many points in other opinions that Justice Scalia wrote where I disagree with him, I am with him on this one.

      1. avatar Sam I Am says:

        ” I am with him on this one”

        Scalia was also aware he could not get too far away from the current political situation. The fact that a well-liked (by us) jurist got it wrong, does not vindicate the opinion.

        Using common and real world logic, by what reasoning doe anyone conclude that the founders intended the central government (including the courts) to have the ability to outgun its citizens? Under your reasoning, the only use, purpose, allowance for a militia is to serve the central government, do defeat it. When you read beyond the courts, you find the founders to be absolutists about keeping sufficient armament to throw off a tyrannical government. Your, individual small arms reasoning is curiously aligned with gun control advocates.

        1. avatar TX_Lawyer says:

          I think that Scalia wrote the strongest opinion that Roberts and/or Kennedy would sign onto. And I think he left a hole in the logic for latter challenges to drive through.

  12. avatar ButtHurtz2 says:

    Yea, time is coming to actually put up or shut up.

  13. avatar Hellbilly says:

    Excellent article!

  14. avatar CalGunsMD says:

    Great work.
    I’m eager to read an article addressing all the ways gun ownership was infringed upon shortly after the creation of the second amendment.

    1. avatar Sam I Am says:

      You can’t look at 1789 with 2017 eyes. In the beginning, the constitution was a limit on the central government, only. The states were free to do as they saw fit, on any subject not prohibited to them in the constitution and amendments.

      1. avatar CalGunsMD says:

        Okay. The problem I face is when I bring up these particular references that the author of this post sites my less than gun-friendly friends will bring up instances of Second Amendment infringement occurring shortly after the ratification of the Constitution. And so I find myself at a phase where I need to be able to counter those arguments.

        1. avatar Sam I Am says:

          “…my less than gun-friendly friends will bring up instances of Second Amendment infringement occurring shortly after the ratification of the Constitution.”

          Do the members of that audience provide citations to actual documents?

          Another thought, you might want to have them categorize the infringements such that those alleged incidents are restricted to the time frame between 1789 and 1868, when the 14th amendment had not devolved the entirety of the constitution to the states. In short, state-level restrictions/infringements were permitted (they were, after all, the state militias).

          And any argument that infringements happened immediately after the founding is specious. It is an argument that states if any infringement exist, then any other infringement is valid.

        2. avatar TX_Lawyer says:

          Research churches established by state governments during that early period. That would be a good way to illustrate the point.

          In truth, any argument based on a state law enacted before McDonald is of little merit.

    2. avatar David Hammack says:

      Actually, the Second Amendment only restricted the federal government till passage of the 14th Amendment. Firearms were actually a key issue in the passage of the 14th Amendment because southern states were denying ownership of firearms to freedmen. After Cruikshank, the 2nd Amendment became a “second class” right. The McDonald case re-incorporated the 2nd Amendment under the 14th Amendment. It will be interesting to see what happens as some of the more egregious laws go the SCOTUS. Personally, I am looking forward to the NY SAFE Act coming under high judicial scrutiny.

  15. avatar UpinVT says:

    TL:DR

    Rights > feelz

  16. avatar Matt in Maine says:

    I agreed with much of the article and I especiallly like the literary references to “militia” and “well-regulated”. However, I don’t agree with his limitation on “and”, which he uses to draw a line in the sand for what arms citizens can possess. This contradicts his selections used to bolster his other points. As a previous commenter stated, that limitation gives the citizen a significant disadvantage over tyranny; something our Forefathers fought to protect against with the Second amendment.

    1. avatar Roymond says:

      Yes. That it was not only the state which could “equip a militia unit, with … crew served arms” is established by the fact that counties, townships, cities, and towns acquired their own in the generations following ratification, and more so by the fact that owners of ships, businesses, and estates both before and after ratification could and did acquire crew-served weapons for defense of their property.

  17. avatar H says:

    Who are the militia? Thomas Jefferson answered, “The People.”

  18. avatar Roymond says:

    Just BTW, there are in fact land deeds which use bodies of water as boundaries — and they can be a pain in the butt.

    They can also be a boon. My favorite example is a local church camp whose western boundary was defined as being the extreme high tide line. The camp’s main buildings were originally forty or fifty feet from the western edge of the property, but then the Army Corps of Engineers built a jetty about an eighth of a mile south of the camp — and now those buildings are a thousand feet from that edge, since the extreme high tide line has moved west as sand built up behind the jetty.

    1. avatar David Hammack says:

      Usually in a landlocked deed with a boundary defined by a stream, they try to find a map from the period of the deed. If no map can be found, somebody will go away unhappy.

      1. avatar TX_Lawyer says:

        Not always. National borders have changed because rivers have moved. Curiously enough, property ownership didn’t, in the specific case I’m thinking about.

  19. avatar Dan says:

    This article is a good read and absolutely correct on this point:

    “So clearly all arms, up to and including military grade weapons.”

    Because:
    Any and all attempts to use the ‘prefatory’ clause, “A well regulated militia being necessary to the security of a free state,” to lay restrictions upon the operative clause, “the right of the people to keep and bear arms shall not be infringed,” invalidates what the operative clause says.

    But he gets the next point wrong:

    “Again, note the wording – keep and bear arms. These two terms are inextricably linked. It inherently limits the arms you may keep, to the arms you can bear. In other words, such arms as an infantryman or “soldier” carries; at the time, a musket or rifle (with bayonet), with sword, and or pistol.”

    “To keep and bear arms” is more analogous to “own and possess” not “own and carry.” Trying to restrict the “arms” covered by the 2nd amendment to only those that can be carried by an individual is just as invalid as claiming the amendment only applies to a militia.

    Case in point, and the article even mentions this, “Just as the Federal government can commission privately owned ships, by a Letter of Marque and Reprisal, as ships of war (privateers)…”, there were privately owned ships of war during the colonial era. Such ships were not restricted from private ownership by the 2nd amendment.

  20. avatar samuraichatter says:

    It was as controversial and revolutionary an idea then as it is now. How so many people want to defang the obvious and call it a police force or military. The point of the 2a is to take out rogue governments and leaders and that is a scary idea. So scary that many people want to do away with it.

    1. avatar Curtis in IL says:

      It was neither controversial nor revolutionary. The British Bill of Rights, written a hundred years before ours, included the right to keep and bear arms. Like all other amendments, it was proposed via two-thirds votes in both the House and the Senate, then ratified by two-thirds of the states.

      1. avatar samuraichatter says:

        The idea that citizens are to keep their gov. in check, by force if necessary, does not sit well with most people around the globe. On top of that Americans are allow here by the 2a to form militias to do just that. That is American exceptionalism. I am not saying the 2a is unique. However, if you describe the 2a and its purpose to many outside of America they will think it is absurd. That does not mean they are right. It’s just that the 2a is really stating something powerful, different, and it is a statement on the way the founders wanted this country to be.

        1. avatar Curtis in IL says:

          I agree that the Second Amendment is controversial today, and the concept is truly mind-boggling to most of the world.

          That was not the case in Philadelphia in 1789, when we had just won a war, at great expense, that started when the British army tried to confiscate our guns and ammo.

  21. avatar Rusty Chains says:

    Enjoyed the article, but American history was my minor in college. The anti-gun faithful don’t care, they want what they want, and don’t care what they have to do to get it. This is where we have to remind them that when thesoap box and the ballot box fail,we are the ones who own the cartridge box.

    Never give up, never surrender, and keep your power dry!

  22. avatar TW25 says:

    “keep and bear arms. These two terms are inextricably linked. It inherently limits the arms you may keep, to the arms you can bear. In other words, such arms as an infantryman or “soldier” carries; at the time, a musket or rifle (with bayonet), with sword, and or pistol.”

    Ah, nope. Gotta disagree.

  23. avatar George says:

    I have NO “less than gun-friendly” friends !

  24. avatar kap says:

    Another knows better than the rest of because of his Education about What? Sure is not about the Declaration of Independence nor the Bill of Rights! Why have a Militia? because the British Army could not defend the Colonies period. so each township former their own Militia, not only was this service mandatory but they had too provide their own Arms.Advance forward to Revolutionary War, the British had a large standing Army which were mostly housed in peoples homes with out their permission, Militias were used through out the War and were thought to be a hindrance to the Large British Standing Army! people like this educated Idiot make me puke

  25. avatar Candace Dainty says:

    This is a wonderful presentation of the original arguments related to our Rights To Keep and Bear Arms. I, personally appreciate the depth of discussion. Thank You.

  26. avatar Chris T in KY says:

    When I hear or read someone say “there is no reason to have a bayonet at the end of your rifle”, I know that you agree with the 1968 Gun Control Act that banned the import of long guns with a bayonet mount on them. If you don’t support a simple bayonet, then you don’t really support the second amendment. And you agree with Diane Feinstein who said “you don’t need a bayonet at the end of your rifle”. I know I would not be arrested in the free states, so I wonder what effect it would have on Atifia at one of their protest?

    A knife is part of the second amendment. And they were the first to be taken away. Then came the gun control laws. Everyone dreams of having a machine gun. I dream of have a jet fighter, as some people do. Up until the late 1990s you could put guns, rockets or bombs on private aircraft. Or maybe a T72 or T80 tank is your choice, since there are people importing them. A team is required to run a tank. But the bayonet represents the individual. It’s great a person with money can buy any weapon they want. But the second amendment was not written for rich people. Hi points (Bersa?) and knives will do just fine for those with very little money. A neighborhood owned tank might not be such a bad idea. Two hundred years ago a town could own several cannons.

    https://www.wired.com/2015/06/heres-can-buy-russian-tank/

    1. avatar David Hammack says:

      I don’t think I ever said anywhere that I thought a bayonet was not authorized. Our Founding Fathers wanted every American to be able to equip themselves as well as any soldier in the field. Tenche Coxe said it was “the birthright of an American”. That includes M16’s, drum magazines, bayonets, M203’s, M249’s, Hand grenades, Claymore mines, Bazookas, Dragon missles. Literally “and every other terrible implement of the soldier, are the birthright of an American…”

    2. avatar TX_Lawyer says:

      I don’t think you need a knife on your rifle. I also don’t think the government should be able to tell you that you can’t have one.

  27. avatar glenux says:

    Oh you guys have not read enough about the 2nd Amendment and its context in the Bill of Rights in general.

    Read some of the Second Amendment articles on the Tenth Amendment Center.
    http://tenthamendmentcenter.com/category/constitution/2nd-amendment-constitution/

    The website Guncite
    http://www.guncite.com/index.html

    BTW, the States are the parties of the Constitutional Compact. They intended for the Bill of Rights to be a constraints on the federal government, not the States themselves.

    Any kind of control the States had on guns or any recognition of the Right to Keep and Bear Arms were put in their own State constitutions.

    1. avatar Roymond says:

      Despite what one of the articles there says, the SCOTUS is correct in using the Fourteenth Amendment to enforce individual rights against the states. That’s not “consolidation”, as is claimed, it’s elevating the principle of individual rights against all levels of government. The problem is that the essential concept is not clearly states, namely that whichever law most and best guards individual liberty should prevail, regardless of whether it is federal or state or even neighborhood covenant. Of course the reason it isn’t stated is that it was considered to be self-evident, just as the right to self-defense wasn’t stated because it was considered self-evident.

      The Framers thought the states would always be the champions of individual rights. The aftermath of the Civil War proved that hope false — and thus the Fourteenth was set in place to give the federal government the authority to act on behalf of the citizens when the states failed to do so.

      1. avatar Sam I Am says:

        “…the Fourteenth was set in place to give the federal government the authority to act on behalf of the citizens when the states failed to do so.”

        And right there is the end of the republic as it was founded.

        Nowhere in any of the commentary on the constitution, or even private letters among founders, will you find any notion that the central government has a right to force the states, or individuals, “to do right”. The very idea that the central government had moral authority to interfere with individual rights in and among the states (other than granted by the constitution [which the states preserved the right to recind]). The entire concept of the constitution was that the states were completely sovereign, superior to the central government.

        The 13th and 14th amendments were not ratified under a system of two robust parties, spread across the populace (not ratified in an environment that looks like what we have today). The amendments were ratified by the powers that won a war to preserve an idea that did not have its own preservation mandated in the founding documents. Indeed, the first state that threatened to leae the union was Massachusetts. (http://ditext.com/dilorenzo/yankee.html).

        The founders fully subscribed to the idea that a sovereign state retained the right to separate from the compact of states (“the union”, the constitution), whenever a state determined remaining would be seriously damaging to the rights of the state (which, inconveniently, was the causus belli for the (accurately identified) War Between the States (note: not the war between some states, and the central government).

  28. avatar Gordon Vikse says:

    One need not delve into the meanings of the individual words and phrases when an analysis of the sentence structure is sufficient.

    We have a complex sentence that has the part where it talks about the militia and the part that says “The right of the people to keep and bear arms shall not be infringed. “When one is looking at a complex statement, there is a dependent part and an independent part. The dependent part does not form a complete sentence when read alone while the independent part does. In such a case, the independent part controls the meaning of the complex sentence. So the “right of the people…” part is the meaning of the complete sentence while the “…militia”… part is only there to add background to the complete sentence.

    When did English cease to be taught in schools? Same with the He/She problem.

    1. avatar Sam I Am says:

      “When did English cease to be taught in schools? Same with the He/She problem.”

      140 characters does not allow for compound, complex syntax.

  29. avatar BigDawgBeav says:

    I will always prefer the wording of the Pennsylvania Constitution, ratified Sept.., 1776:

    XIII. That the people have a right to bear arms for the defence (sic) of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

    The current version:

    Right to Bear Arms
    Section 21.
    The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

    Seems pretty clear-cut to me. Our Founders were not stupid.

    1. avatar Roymond says:

      This reminds me of one of the more inane things I encounter in discussions of the Second: idiots applying the rules from some Harvard student text on composition to analyze the grammar. It’s like they aren’t aware 1776 and 1791 weren’t just last generation.

      What’s funny is they are often the same people who criticize fundamentalist Christians for reading Genesis like it was written just last week.

  30. avatar gof says:

    I was just reading on wikipedia….I know, gasp, about the English Bill of Rights from 1689. It seems to have the same general ideas as our Bill of Rights.

    That lead me to read about the Right to keep and bear arms from the same source. It cites that only 15 constitutions in nine countries have ever included an explicit right to bear arms.

    It goes on to say, “At present, out of the world’s nearly 200 constitutions, three still include a right to bear arms: Guatemala, Mexico, and the United States; of these three, only the last does not include explicit restrictive conditions.”

    We are a lucky people and need to keep it so.

  31. avatar Shaun Dudash says:

    I would like to point out, to the author, that under special licensing that as a private citizen it is legal to own a fighter jet as well as artillery pieces and tanks, so for the author to make the claim that the 2nd does not include crew manned weapons I would have to oppose that. Art Nalls owns (and licensed to fly) a Harrier Jump Jet. As well as it is legal to own a tank or even artillery pieces. During the Revolutionary war many of the armies cannons were privately owned. So by evidence even today. it is a misnomer to say that crew manned weaponry was not included.

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