Kenneth Roberts, “a 92-year-old World War II US Navy veteran” recently had a letter to the editor published in the Las Vegas Informer. Appropriately titled Questioning the Second Amendment, he poses seven questions designed to demonstrate, despite all evidence to the contrary, that the Second Amendment does not protect an individual right to keep and bear arms . . .
He opens with this:
I have a few questions for those who, including some members of the Supreme Court, honestly believe that the Second Amendment was written (10 years after the end of the Revolutionary War) to give the people the right to own and carry guns in our neighborhoods, at public events and in public places.
First things first, Mr. Roberts; thank you for your service. However, the Second Amendment does not give anyone any rights. This simple, but often overlooked fact is evident in its very phrasing.
It does not say: A well regulated militia being necessary to the security of a free state, the people are hereby granted the right to keep and bear arms. The operative clause states that the right of the people to keep and bear arms shall not be infringed, clearly indicating that the authors felt that this right already existed and that in order to maintain the security of the free state the government was prohibited from infringing on this pre-existing right.
With that cleared up, let us consider Mr. Roberts’ questions:
1. Why, if the writers wanted to mean “own,” do they use the word “keep” in the amendment?
Obviously they didn’t mean “own” or they would have said so; they wanted to protect an individual’s right to keep guns where he wished, be that a home, business or transportation. No, if the Second Amendment only said that we could “own” guns then it would be perfectly acceptable (to the antis, anyway) to require gun owners to store their guns at the shooting range or police department. I mean you would still “own” your weapons, right? So how could that be unConstitutional?
2. Why the word arms if they meant guns—are grenades and flamethrowers OK too?
Well, that’s an excellent question. Or maybe not since the answer is the same as the answer to your first question; they didn’t mean that only guns were included. Over the past few years there have been several court cases regarding knife ownership and possession which have been decided on Second Amendment grounds. As for grenades and flamethrowers, brace yourself: flamethrowers are already perfectly legal. Grenades less so.
So what did the Founders consider to be ‘arms’? According to Noah Webster’s 1828 dictionary arms are:
- Weapons of offense, or armor for defense and protection of the body.
- War; hostility (as in To take arms, is to arm for attack or defense.)
- The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.
- In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.
Hmmm. It looks that by definition, body armor is protected by the Second Amendment, too. But back to the question: yes, grenades and flamethrowers are considered arms, as are cannons (like the ones Governor Gage ordered Major Pitcairn to confiscate from Lexington and Concord), cavalry and (as evidenced by the Constitution’s Letters of Marque and Reprisal clause) privately owned warships.
So no, the Founders did not just mean guns.
3. Why the word bear if they meant carry?
Why did they use security of a free state instead of safety of a free state? Why did they use infringed instead of abrogated or contravened? Since (again, according to Webster) bear and carry are synonyms why shouldn’t they use “bear?”
4. Why the words bear arms which when together followed by against means wage war on.
I think what Mr. Roberts is insinuating here is that the Second Amendment only protects the right to bear arms in a military sense. This argument was part of the Brady Bunch’s amicus brief to the Supreme Court in District of Columbia v. Heller:
The debates surrounding adoption of the Second Amendment, and in particular Madison’s initial proposal to the First Congress, make clear that the framers understood the right to “keep and bear Arms” to refer only to military purposes.
Unfortunately for the Bradys (and Mr. Roberts) this is simply not true. For example, both Connecticut and Alabama state in their constitutions’ Declaration of Rights:
Every citizen has a right to bear arms in defence of himself and the State.
In addition, as Judge Garwood stated in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) :
… there are numerous instances of the phrase “bear arms” being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the “people” [or “citizen” or “citizens”] “to bear arms in defense of themselves [or ‘himself’] and the state,” or equivalent words, thus indisputably reflecting that under common usage “bear arms” was in no sense restricted to bearing arms in military service.
Finally, going back to Webster, of his 20 definitions for “bear” only #3 comes close to such a limited meaning when it states:
To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat.
This is where Mr. Roberts gets a little deeper:
5. When did the people need a special amendment to give them a right to bear arms and risk their lives in battle?
I am assuming that he meant why rather than when. See above where I deconstruct the idea that the Second Amendment ‘gives’ rights to anyone. But to answer the other part of the question, the people do not need this amendment, the government needs it to remind them that government derives its just powers from the people, they do not derive rights from the government.
6. Why did they put the word infringe at the very end which means to break or ignore the terms or obligations of (an oath agreement law or the like) to disregard, violate, unless they expected some future organization or court to ignore or disregard the first 13 words of the amendment which includes the militia?
This is another rather oddly phrased question, but I think Mr. Roberts is throwing a little snark at people (or courts) who disregard the dependent clause of the Second Amendment and focus on the operative clause. Well, to set his mind at ease, here is the text which Madison originally proposed for the Second Amendment:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
See Mr. Roberts? ‘Shall not be infringed’ is right there in the middle for you. And before anyone starts pointing out that this obviously isn’t what the Founders meant since this isn’t what they passed, I would suggest you read the debates. Once you have plowed through them you will see that (apart from dropping the religiously scrupulous clause) the authors believed that differences between the original text and the ratified text were purely stylistic; the meaning was unchanged.
With his seventh and final question, though, Mr. Roberts really rolls out out the big guns:
7. The big question why was the Second Amendment written if to give the people the right to own guns when they have always had that unwritten right from colonial days to the present because there has never been a law written that would deny the people of that right?
Ah, the money question! Or as Mr. Roberts calls it the BIG question. It seems as though he almost gets it…almost grasps the idea that our rights pre-exist the Constitution or even governments, but just misses wrapping his brain around the idea.
In answer, though, why would the Founders write an amendment to give people rights they already possess? The quick answer is, they wouldn’t. What they did do was write an amendment to prohibit government from infringing that right. But that last question also shows an ignorance of history as well as a basic misunderstanding of the concept of infringement.
First, the hypothetical lack of any laws banning ownership most assuredly does not constitute a lack of infringement. Second, from day one gun laws have been about banning ownership. Before there even was a United States of America there were laws banning the sale of muskets and powder to the French or Indians. Before the Civil War there were vast swaths of the country where blacks could not possess weapons.
Post-Civil War the various laws collectively called the Black Codes were (among other things) designed to keep newly freed slaves disarmed. New York State’s Sullivan Act was passed in 1911 at the behest of Tammany Hall so that the machine’s political friends (mainly Jewish and Irish mobsters) could be armed while their opponents (mainly Italian and Sicilian immigrants who wanted a piece of the action) would be kept disarmed.
So no Mr. Roberts, the entire history of gun control is laws written to deny people their rights. As John Dubose said, gun control is giving guns to people you like and trust while denying them to those you do not.