Assault Rifle

Opinion: Gun Ownership

The Second Amendment never gave U.S. citizens the right to own a gun. The claim is nothing more than a misunderstanding of the wording (or a deliberate lie) by extremists.

There are no rights given in the U.S. Constitution to allow private U.S. citizens the right to buy, own, or use a gun, for any reason, whatsoever. So, no, private gun ownership is not a constitutional right.

While those statements are true, it doesn’t keep individuals from purporting that the wording “means” that private U.S. citizens can own and carry guns. And, lobbyists have proven that they can have can buy an opinion from politicians, judges to state just about anything the lobbyists want them to say. But, until the Constitution is amended again, the wording remains:

“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 Constitution

To understand the way in which the Founding Fathers wrote the United States Constitutions, we must first understand that the Constitution is the supreme law of the U.S.A. and was written to delineate the national frame of the government and to be an explicit declaration of the powers of the United States Congress, as well as federal laws that all states had to abide by.

The Constitution first three articles entrench the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress; the executive, consisting of the President; and the judicial, consisting of the Supreme Court and other federal courts. Articles Four, Five and Six entrench concepts of federalism, describing the rights and responsibilities of state governments and of the states in relationship to the federal government. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it.

The Constitution is interpreted, supplemented, and implemented by a large body of constitutional law. The Constitution of the United States is the first constitution of its kind, adopted by the people’s representatives for an expansive nation; and it has influenced the constitutions of other nations.

Since the Constitution came into force when approved in the first session of the Congress of the United States on March 4, 1789, it has been amended twenty-seven times. The wording of the Second Amendment as well as the 26 other amendments were not originally included in the Constitution, thus the reason for them to be considered Amendments.

The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed following the oftentimes bitter 1787–88 battle over ratification of the U.S. Constitution, and crafted to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government’s power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the people. The concepts codified in these amendments are built upon those found in several earlier documents, including the Virginia Declaration of Rights and the English Bill of Rights 1689, along with earlier documents such as Magna Carta (1215).

On June 8, 1789, Representative James Madison introduced a series of thirty-nine amendments to the constitution in the House of Representatives. Among his recommendations Madison proposed opening up the Constitution and inserting specific rights limiting the power of Congress in Article One, Section 9. Seven of these limitations would become part of the ten ratified Bill of Rights amendments. Ultimately, on September 25, 1789, Congress approved twelve articles of amendment to the Constitution and submitted them to the states for ratification. Contrary to Madison’s original proposal that the articles be incorporated into the main body of the Constitution, they were proposed as supplemental additions (codicils) to it. Articles Three through Twelve were ratified as additions to the Constitution on December 15, 1791, and became Amendments One through Ten of the Constitution. Article Two became part of the Constitution on May 7, 1992, as the Twenty-seventh Amendment. Article One is technically still pending before the states.

Originally the Bill of Rights applied only to the federal government. The door for their application upon state governments was opened in the 1860s, following ratification of the Fourteenth Amendment. Since the early 20th century both federal and state courts have used the Fourteenth Amendment to apply portions of the Bill of Rights to state and local governments. The process is known as incorporation.

There are several original engrossed copies of the Bill of Rights still in existence. One of these is on permanent public display at the National Archives in Washington, D.C.

Court Rulings

The Second Amendment to the United States Constitution was adopted on December 15, 1791, as part of the first ten amendments contained in the Bill of Rights. As is true of all writings there will be those who interpret the wording for their own use. In the case of rights and laws, there have always been attorneys who attempt to manipulate the wording to win their cases. And, in legal instances, this is why the U.S. has a Supreme Court, whose task it is to make sense of the wording on individual cases.

In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that,

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence

and limited the applicability of the Second Amendment to the federal government. In United States v. Miller (1939), the Supreme Court ruled that the federal government and the states could limit any weapon types not having a

reasonable relationship to the preservation or efficiency of a well regulated militia.

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest. In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual right to possess and carry firearms. In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment’s impact to a restriction on the federal government, expressly holding that the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent that the Second Amendment applies to the federal government. In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that

“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare”.

With these decisions in place, there should be no debate between various private organizations regarding gun control and gun rights of the private citizen.

What Did The Founding Fathers Mean In the Second Amendment?

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions. The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.

One version was passed by the Congress, and a slightly different version was ratified. As passed by the Congress and preserved in the National Archives, with the rest of the original hand-written copy of the Bill of Rights prepared by scribe William Lambert, the amendment 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.

The text was amendment as ratified by the States and authenticated by Thomas Jefferson, then-Secretary of State and the final form 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.

Concerning the Militia

There is no other better way to understand what the founding fathers intended than by the writing of Alexander Hamilton in “Concerning the Militia” published on January 9, 1788, as the Federalist No. 29 of the Federalist Papers. Hamilton explained precisely what the Second Amendment intended. He went to great length to explain why they wanted the right of a “well-regulated militia” that was necessary to the free State, to “keep and bear arms” and to protect it from being infringed upon by the Congress of the Federal Government.

Hamilton stated that a “well-regulated militia” composed of the people will be more uniform and beneficial to the “public defense” of Americans. He argued that an excessively large militia can harm a nation’s work force, as not everyone can leave their profession to go through military exercises. Thus, a smaller, but still “well-regulated militia”, complimented by the “people at large” (reserves) who could be called into service as needed, is the answer. In the end, Hamilton concluded that the militia, as it is constituted directly of the people and managed by the states, is not a danger to liberty when called into use by other states to do things such as quell insurrections.

Of course, no gun extremist will ever mention Hamilton’s 1788 “Concerning the Militia” as it is a direct contradiction of what they want the public to believe. It thoroughly explains that the Second Amendment is an instrument of government and not for the rights of the private citizen to possess guns for hunting, collecting, carrying openly down the street, into a crowded restaurant or for that matter to protect yourself. There are state laws that may allow these uses but certainly not a federal government constitutional right.

The militia should be a properly constituted, ordered and drilled (“well-regulated”) military force, organized state by state, explained Hamilton. Each state militia should be a “select corps,” “well-trained” and able to perform all the “operations of an army.” The militia needed “uniformity in … organization and discipline,” wrote Hamilton, so that it could operate like a proper army “in camp and field,” and so that it could gain the “essential … degree of proficiency in military functions.” And although it was organized state by state, it needed to be under the explicit control of the national government. The “well-regulated militia” was under the command of the president. It was “the military arm” of the government. The “well-regulated militia” that the Founding Fathers spoke of is what we now know as the National Guard.

This “well-regulated militia” shouldn’t be made up of full-time professional soldiers, said the Founding Fathers. Such soldiers could be used against the people as King George had used his mercenary Redcoats. Instead, the American republic should make up its military force from part-time volunteers drawn from regular citizens. Such men would be less likely to turn on the population.

And the creation of this “well-regulated militia,” would help safeguard the freedom of the new republic because it would make the creation of a professional, mercenary army “unnecessary,” wrote Hamilton. “This appears to me the only substitute that can be devised for a standing army, and the best possible security against it,” he wrote.

The Founding Fathers wanted to make sure this militia could not be disarmed by the federal government. That a future “tyrant” couldn’t disarm the National Guard, and then use a mercenary army to impose martial law.

The Founding Fathers used the word “militia” to refer the republic’s new force rather than the word “army” because more than two centuries ago the word “army” called to mind the British army, foreign mercenaries, tyrants and kings.

Hamilton was explicit that the “militia” did not mean every ordinary man with a musket. Such amateurs would stand no chance in modern warfare against a “well regulated militia”, he wrote. And requiring every citizen to become “well regulated” would be “a real grievance to the people, and a serious public inconvenience and loss,” he wrote. Taking people away from their work in order to train them “would form an annual deduction from the productive labor of the country.”

The Constitution is an instrument of government. The Second Amendment is not about private gun ownership. The Constitution is about government.

Today we have a professional army, anyway. Military matters have become so complex that part-time soldiers could do it all well. So you could argue that makes the Second Amendment null and void, like the parts in the Constitution about slaves and Indians being counted as “three-fifths” of a person in the Census.

If you still want to defend the Second Amendment, it should apply only to those who undergo the rigorous training to attain “proficiency in military functions” and perform the operations of an army,” by volunteering for the National Guard, where they serve as ordered under the ultimate command of the president and be subject to military justice.

So if you’re running around waving your gun and hiding behind the Second Amendment thinking that it gives you the right to act in an extremist manner you’re not a “patriot.”

A patriot loves his homeland and is willing to defend it against others. A patriot is a loyal-to-the-death defender of his country’s traditions and values. If you don’t agree with the constitution of the United States you should expect to be vilified as unpatriotic, i.e., unworthy of being an American, and possibly traitorous.

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