G. Pare: Misinterpreting the Second Amendment

It seems to me that a great many people believe that the Second Amendment guarantees anyone the right to carry military-style guns as they choose. The Second Amendment reads:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The definition of a well-regulated militia, from those days, would now refer to the National Guard of the United States.

The militia originated in colonial times. Local detachments of civilian volunteers trained to combat hostile Indians and to deal with other emergencies. In 1775, after the start of the American Revolution, the Second Continental Congress made the militia of the various colonies the nucleus of the Continental Army.

It seems to me that the Second Amendment of the Constitution has been misinterpreted.

Gerald C. Pare, Poland

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Comments

 's picture

How do you

misinterpret " the right of the people to keep and bear arms, shall not be infringed." Amazing how you left that out. I agree on the militia portion, but the right of the people statement means you and me.

MARK GRAVEL's picture

How do you know the founding

How do you know the founding farthers did not mean a well regulated militial and the rigth of the people to keep and bear arms being necessary to the secrutity of a free state shall not be infringed?

Why are you so sure that you have it rigth? Perhaps you have it wrong.

RONALD RIML's picture

Supreme Court essentially excised 'Militia' Clause

This was a 5-4 decision by the Supreme Court.

http://www.law.cornell.edu/supct/html/07-290.ZS.html

"'No. 07–290.?Argued March 18, 2008—Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

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 traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(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. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.

(d) The Second Amendment ’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.

478 F. 3d 370, affirmed.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined."

 's picture

Thanks again, Professor Riml.

It's too bad your style of "brief" ... isn't. Of course, that would force you to summarize a long-winded copy-and-paste in your own words. When that happens, Hell will be a Frigidaire dealership.

Jason Theriault's picture

Come on

You want to debate constitutional issues, be ready to have to deal with long winded decisions. But if you can't be bothered to even read a couple of paragraphs about what the highest court in the land has to say about it, you might want to stick to espn.

RONALD RIML's picture

"My Style?" Non, M'sieur

Be attentive enough to notice the link and the quotes.

I presented it for your own edification. Knowing full well you're too damn lazy to search out something authoritative on your own.

MARK GRAVEL's picture

Yet Washington DC has very

Yet Washington DC has very high gun homicides - go figure.

RONALD RIML's picture

Why has DC's Homicide Rate decreased 78% since 1991?

Any idea????

MARK GRAVEL's picture

Crack is Wack

Crime in Washington, D.C. (formally known as the District of Columbia), is directly related to the city's changing demographics, geography, and unique criminal justice system. The District's population reached a peak of 802,178 in 1950. However, shortly thereafter, the city began losing residents and by 1980 Washington had lost one-quarter of its population. The population loss to the suburbs also created a new demographic pattern, which divided affluent neighborhoods west of Rock Creek Park from more crime-ridden and blighted areas to the east.

Despite being the headquarters of multiple federal law enforcement agencies such as the Federal Bureau of Investigation (FBI) and United States Drug Enforcement Administration (DEA), the nationwide crack epidemic of the 1980s and 1990s greatly affected the city and led to massive increases in crime.[1] The number of homicides in Washington peaked in 1991 at 479,[2] and the city eventually became known as the "murder capital" of the United States.[3]

The crime rate started to fall in the mid 1990s as the crack epidemic gave way to economic revitalization projects. Gentrification efforts have also started to transform the demographics of distressed neighborhoods, recently leading to the first rise in the District's population in 60 years.[4]

By the mid-2000s, crime rates in Washington dropped to their lowest levels in over 20 years. As in many major cities, crime remains a significant factor in D.C., especially in the city's northwestern neighborhoods, which tend to be more affluent, draw more tourists, and have more vibrant nightlife.[5] Violent crime also remains a problem in Ward 8, which has the city's highest concentration of poverty.[6]

RONALD RIML's picture

If you're going to quote Wikipedia and it's references -

Have the decency to attribute your source. And perhaps even put it into quotation marks........

http://en.wikipedia.org/wiki/Crime_in_Washington,_D.C.

RONALD RIML's picture

Does the District of Columbia have a 'Militia?'

or Federal Troops???

RONALD RIML's picture

How High?

Quantitatively

MARK GRAVEL's picture

According to MPD's 2000

According to MPD's 2000 annual report, a firearm was used in 81 percent of the 242 homicides recorded that year. The 2011 annual report shows that 71 percent of the 108 homicides last year that involved a firearm.

http://www.huffingtonpost.com/2012/12/17/dc-gun-violence-statistics_n_23...

RONALD RIML's picture

So they're going in the right direction.

Nothing wrong with that.

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