“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.”
Of the first Ten Amendments, none have received more attention than the Second. Discussions generally revolve around the concept of a “well regulated militia.” It’s the type of dialogue that academics love because it allows them to fantasies about sitting around in togas having elaborate intellectual discussions about what the Framers meant.
The fact is quite simply that no one knows – unless you were the fly on the wall or part of the 1st Congress – why it was written as it was. All of the “cerebral horsepower” directed at the subject is no more than self-flagellation, and an opportunity for self-aggrandizement.
Now, I make no claim to clairvoyance, nor am I a Constitutional Scholar, but I did stay at a Holiday Inn Express so I’ll give my analysis!
There are two distinct thoughts embraced by the Second Amendment; (a) a well regulated militia* and (b) the right of the people to keep and bear arms shall not be infringed. These are two independent clauses, which the Framers could have easily separated by a period and not a comma. Yet they chose to modify “the right of the people to keep and bear arms shall not be infringed**” with their recognition that a militia is necessary to the security of a free State. Why?
1. The Continental Army was formed on June 14, 1775 prior to adoption of the Declaration of Independence on July 4, 1776 and well before Congress approved 12 Articles to amend the Constitution. Therefore, one must assume the concept of an Army was well established in the minds of the Framers. In drafting Article IV, which became the Second Amendment, the Framers refer to a militia and not an Army; a significant distinction in my view.
2. Furthermore, James Madison advanced the 12 Articles to amend the U.S. Constitution because there was a genuine concern by the States that the Constitution, as originally adopted, could lead to domestic tyranny.
The combined effect of items 1 and 2 suggest the Framers and the States wished to retain the ability to call on its citizens to stand up a force capable of defending its rights and freedoms, should it become necessary to defend them from foreign or domestic threats. Nothing is written in the Second Amendment that is mutually exclusive; it is all complementary. The existence of a National Guard does not preclude the right to keep and bear arms by the people.
Another common argument, which creeps in when discussing the 2nd Amendment, is embodied in the ridiculous statement published in Recoil Magazine by its former Editor Jerry Tsai:
the MP71A is unavailable to civilians and for good measure. We all know that’s technology no civvies should ever get to lay their hands on. This is a purpose-built weapon with no sporting applications to speak of.
Nowhere in the Second Amendment is there reference to the types or quantities of arms “the people” may keep or bear; in fact, if you read historical accounts, biographies and autobiographies of the Framers, and many State Legislators of the time, you walk away with a sense that had they had access to MP7A1s, Kalashnikovs and 100-round magazines they would treasure them as much as their liquor and women.
When Mr. Tsai states “…We all know that’s technology no civvies should ever get to lay their hands on…” you have a clear indicator he lacked respect for the 2nd Amendment rights of his readers, and just as importantly his advertisers. Moreover, Jerry Tsai’s words play into the hands of those that live to infringe on 2nd Amendment rights; adding fuel to the fire of more gun control.
I will also add that Jerry Tsai’s comments are a vulgar display of ignorance. It was apparent that Mr. Tsai lacked understanding of the National Firearms Act (NFA) of 1934 and its amendments, which does not prohibit the ownership of automatic weapons.
Let there be no doubt, The Second Amendment is under attack, and will probably continue to be so, whether out of ignorance and irrational fear, or a genuine desire to subjugate. Be ever vigilant! However, for an editor of a magazine that purports to advance knowledge and familiarization with technologies embodied by the 2nd Amendment to make statements, like those credited to Jerry Tsai, is repulsive and worthy of toilet reading.
I sincerely hope Recoil Magazine will regroup and deliver on its promise to be a premier publication.
-Sal Palma
twobirdsflyingpub.wordpress.com
*Note that in the original text, militia is not capitalized and for that reason, I believe it refers to the act of assembling a group of people for defense and not a specific military structure or organization.
**I use “the right of the people to keep and bear arms shall not be infringed” as the principal clause because the Bill of Rights is rightfully people centric.
***There are numerous scholarly works written on the 2nd Amendment this is but one “THE SECOND AMENDMENT: A GUARD FOR OUR FUTURE SECURITY[1]” by Andrew M. Wayment – published in the Idaho Law Review
Tags: Sal Palma
Sal, don’t get hung up on capitalization or punctuation; the “rules” for them were very fluid in the late 1700’s. Also, the Second Amendment, until the last 20 years or so, has been one of the most ignored amendments in the Bill of Rights–especially when you compare it with the continuous debates surrounding the First, Fourth and Tenth Amendments. Academics were embarrassed to even discuss the implications of an individual interpretation of the Second until David Hardy published his ground-breaking article “Of Arms and the Law” in the Chicago Law Review back in 1974. Lastly, we _do_ have a pretty good understanding of why the Amendment was written the way it was, via the contemporary documentation of the debates during the ratification period, as well as the debates that happened at the State level when similar provisions were incorporated into the State Constitutions. (Read Hardy’s article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544064)
Aside from those nit-picks, I heartily agree that Tsai needed to be educated about the true meaning of the Second Amendment, and that we will always have to be vigilant in the protection of our rights.
Here are a couple of quotes, and a couple of links that I think give some good, in-depth and necessary historical perspectives on this…
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“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. ” (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights. )
“The great object is that every man be armed… Everyone who is able may have a gun. ” (Patrick Henry, in the Virginia Convention on the ratification of the Constitution. )
http://www.constitution.org/mil/rkba1982.htm
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When asked what the Militia was, George Mason, one of the Framers of the U.S. Constitution, said, “Who are the Militia? They consist now of the whole people, except for a few public officers.” Yet we also see statutes like 10 USC 311, which defines it as “all able- bodied males at least 17 years of age and, except as provided in section 13 of title 32, under 45 years of age who are, or have made a declaration of intention to become, citizens of the United States.” Some state statutes define it as “able-bodied males” of different age ranges, such as 16 through 59.
http://www.lawandliberty.org/what_mil.htm
I recently wondered about interpreting the second amendment by a simple reorganization of the words. We go from:
“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 right of the people to keep, bear arms and a well regulated militia, necessary to the security of a free state shall not be infringed.”
I phrase it this way to make it clearer to myself that perhaps they meant these three things separately. We are allowed to keep arms, bear them and allowed a militia. Not so much we are allowed to keep and bear arms only in a militia, which many anti-gun people interpret it as.
Just my two cents.
The fact is quite simply that no one knows – unless you were the fly on the wall or part of the 1st Congress – why it was written as it was. All of the “cerebral horsepower” directed at the subject is no more than self-flagellation, and an opportunity for self-aggrandizement.
Why don’t you try reading the Founding Father’s other works, namely the Federalist Papers?
Alexander Hamilton in Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen…The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution… Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
James Madison in Federalist No. 46 wrote:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
I could go on and on… but the you don’t have to be a fly on the wall, you just have to read what the Founding Fathers wrote to understand the meaning….
My objective in writing this article is not to provide an in-depth treatise of the 2nd Amendment but rather capture the essence and clarity with which Article IV was drafted by Madison. It is unambiguous. Brearly’s citations support the Framer’s mindset that I tried to communicate at a high level.
I find it ridiculous or more accurately hypocritical that the debate rages on.
Furthermore, I am deeply concerned that the targeted application of regulations, such as the import ban, will continue to erode the 2A. Here’s an interesting scenario for you to consider.
The State of Florida lost a rather interesting case – which I hope they’ll appeal – revolving around a physician asking a patient, during an examination, if he or she owned a firearm. This became know as the Florida Gun Gag law.
Florida lawmakers passed legislation prohibiting a physician from asking a patient, during the course of an examination, if he or she owned a firearm . The law was ruled unconstitutional by U.S. District Judge Marcia Cooke (Miami, FL) http://www.medpagetoday.com/PrimaryCare/PreventiveCare/28529 citing that it is a violation of free speech. Here is what this means.
You go to a doctor for a routine physical, and during the course of that exam the doctor asks if you own a gun. Unsuspectingly you answer yes. This is now part of your medical record; accessible to insurance companies. This alone creates the opportunity for the insurance company to re-rate your policy, and you find yourself paying a significantly higher premium.
Given the Affordable Healthcare Act, which requires all to have health insurance, the insured is place in a position where he or she could have to choose between the firearm or health insurance.
Potentially, simply telling the insurance company you no longer own the firearm will probably not fly. Insurer’s could very well ask the insured to deliver it to a local police station where a certificate would be issued as proof.
Speculation on my part, at this point in time, but it’s probably not too far-fetched! So, the 2nd Amendments stands, but it is defeated by regulation.
Not a pretty sight.
I am glad to see everybody here are in agreement with me that the Second Amendment is sacrosant to the U.S. Constitution and the American Way of Life. (The capitialization is my emphasis because I feel as if we have lost a lot of our American traditions and Judeo-Christian values.) I trust that Romney means what he said at the NRA Annual Meeting and the Republican Convention regarding the fact that the Second Amendment stands as written – End Of Questions and No Further Discussion Required. God Bless the United States of America.
There is some debate, but it’s not around the right of the individual to keep and bear arms, which is quite clear, but around the rights of the individual municipalities and states (as well as the Federal government) to enforce separate laws about right (will / shall) to carry concealed, right to own handguns or particular makes of guns, whether ex-cons can own guns, possession of guns on private property, etc…
Ignoring the debate about the true meaning of the 2nd Amendment (i.e. defense against tyranny vs the anti-gun ‘sporting history’ BS argument), no court in the US would support taking away a hunting rifle or shotgun without justification (i.e ex-con, history of mental illness, etc…); if they did they would be rapidly overturned by a higher court. However, multiple courts up to the Supreme Court have supported the interpretation of the 2nd to allow for certain types of weapons, or accessories to weapons (I.e. magazines) to be restricted or banned.
Jerry Tsai made a horse’s ass of himself, without a doubt, but the fact remains – the Federal Government has upheld the rights of states and even the federal government to restrict or prohibit the sale of certain guns / types of guns and this has been upheld multiple times by the Supreme Court. He wasn’t far off base that the MP7 might never be offered or allowed to be offered to sale to the general public because it’s a weapon designed to penetrate body armor. Just like the general public can’t by a machine gun.
“He wasn’t far off base that the MP7 might never be offered or allowed to be offered to sale to the general public because it’s a weapon designed to penetrate body armor. Just like the general public can’t by a machine gun.”
There’s nothing about the MP7 other than its date of manufacture that is any different than an MP5 or MP5SD. The Firearms Protection Act of 1986 made it illegal to manufacture and sell SMGs to the civilian market; it also restricted civilian ownership of SMGs to weapons manufactured and registered prior to May 1968.
So, as long as the SMG was manufactured or registered with the NFA prior to May 1968, it is legal for a civilian to own pursuant to NFA.
The ammunition issue is the same as we encountered when FNH introduced the SS-190 round design for the FN P90 and FN FiveSeven pistol. FN took it off the market and ammunition suppliers developed and alternative.
The NFA 1934 is a direct result of Prohibition. Prohibition gave rise to organized crime in the United States and the NFA was enacted to prevent organized crime from gaining access to automatic weapons – not that it mattered a great deal. Mobsters still had access to and used automatic weapons. However, the law remained in place and was later amended to include other devices.
Jerry Tsai simply didn’t know what he was talking about and did a disservice to his readers and advertiser.
I got my insight watching the Williamsburg VA reenactment that goes on every weekend. The (Reen)actors are milling around the square with the tourist when a call goes up that the British are outside town with unknown intentions. A call goes up for citizens to form up and delay the force till George Washington could get out of town. Four tourist were issued muskets and invited to drill with the militia. It became instantly clear why you must have a citizenry who can handle the tools of defense. Otherwise all you have a gaggle of city people getting in the way. You can’ afford (or trust) a standing army, and “The People” must be prepared to defend what they hold dear, not just wait for someone else to do it and wait for the free water from FEMA.
A defining moment
Shall NOT be infringed in the founder’s own words:
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence … From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that is good” – George Washington
“The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” – Thomas Jefferson
“The best we can hope for concerning the people at large is that they be properly armed.” (Alexander Hamilton, The Federalist Papers at 184-8)
“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, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)
“The great object is that every man be armed” and “everyone who is able may have a gun.” (Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,…taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386)
“The people are not to be disarmed of their weapons. They are left in full possession of them.” (Zachariah Johnson, 3 Elliot, Debates at 646)
“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our 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?” (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)
“The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States….Such men form the best barrier to the liberties of America” – (Gazette of the United States, October 14, 1789.)
“No Free man shall ever be debarred the use of arms.” (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])
“The right of the people to keep and bear…arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country…” (James Madison, I Annals of Congress 434 [June 8, 1789])
“A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms.” (Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169)
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. 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.” (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [ I Annals of Congress at 750 {August 17, 1789}])
“…to disarm the people – that was the best and most effectual way to enslave them.” (George Mason, 3 Elliot, Debates at 380)
“Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.” (James Madison, The Federalist Papers #46 at 243-244)
This is but a very small sampling however the founder’s intent is quite obvious just from these very few quotes.
Sal – thank you for that information, but I don’t understand it’s use in this context or how it negates the point I was making. Interpretations to the 2nd Amendment allowing restriction of sale and / or ownership of certain types of weapons, accessories to weapons, and permissible concealed carry regulations have been law in loads of places for a long long time, and have survived challenges up to the level of the Supreme Court. If you can ban machine guns or high-capacity magazines, or can restrict the ability of individuals to carry concealed weapons in certain areas, why can you not ban a weapon type and / or ammunition that is designed from the ground up to the express purchase of defeating body armor at longer distances for sale and possession by the general public? Or at the very least ban it’s possession without an additional licensing requirement or a requirement for Military / LE sales only?
Or is the Wikipedia article wrong – it states:
The MP7 is a German submachine gun manufactured by Heckler & Koch (H&K) and chambered for the HK 4.6×30mm cartridge. It was designed with the new cartridge to meet NATO requirements published in 1989, as these requirements call for a personal defense weapon (PDW) class firearm, with a greater ability to defeat body armor than current weapons limited to conventional pistol cartridges. The MP7 went into production in 2001. It is a direct rival to the FN P90, also developed in response to NATO’s requirement.
Doesn’t sound the same as the MP5 (which is a 9mm standard pistol ammunition weapon) or a MP5SD (which is a silenced version of the same weapon) other than the same manufacturer and possibly the same mechanical action when shot.