My first thought of the Bill Of Rights is: It is an addition to the Constitution with ONE protagonist causing its creation. To list a certain select list of rights so that all others may be protected from arbitrary government. It is impossible for me to draw from the phrase
"the right of the 'people' to keep and bear arms" as actually referring to the right of the 'state' to keep and bear arms, as collective rights theorists suggest.
But is there any clarification as to the 'intent' of our founding fathers pertaining to this amendment? Is there clarification from the Supreme court? Is there any clarification in our laws by which we can cross-reference, to determine the intent of the second amendment? The answers are: Yes, yes and yes...
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The Second Amendment: "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."
First of all as we can see, there are two separate phrases making up the second amendment, and it is clear that the first one is subordinate to the other and merely gives reason for the necessity of the other. But collective rights' theorists insist that the first one restricts the right only to the states through their National Guards and doesn't extend to the individual themselves, despite the fact that the overwhelming theme of the Bill Of Rights is to preserve individual rights.
So as I stated above: Is there any clarification?
Well, since collective rights theorists only argument is the addition of the phrase
"A well regulated militia" in the subordinate clause, lets delve straight into the law to see whether or not if we can't find any clarification of what the law defines a militia as.
If you go into the U.S. Code, you will find a section titled "
Militia: composition and classes" (link provided)
US CODE: Title 10 Section 31: http://straylight.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Notice that the law defines the militia as composing of
two separate categories: The
organized militia and the
unorganized militia. And as we can see; the unorganized militia is composed of
individual male citizens between the ages of 17 through 45 years of age.
Now I know what you are thinking. You're probably thinking:
"So are you saying that men over 45yrs of age, or women in general don't have equal rights to another class of citizens?" And the answer to that is NO, that is not what I am saying at all, and I will make that clear below.
U.S. SUPREME COURT CASES:Next, is there any clarification from the U.S. Supreme Court? And as I stated above - yes there is, and here's a few examples.
United States v. Cruikshank, 92 U.S. 542 (1876): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=542This was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right:
"is not a right granted by the Constitution . . . neither is it in any manner dependent upon that instrument for its existence."
The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because
the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had
"to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state.
Now I know what some of you are probably thinking. That the Supreme Court just said that the States can legislate laws restricting rights to keep and bear arms. Well I am sorry, but if that's what you're thinking, you would be in error. Because, besides US v. Cruikshank stating that the right to keep and bear arms is a
right not dependent on the Constitution; meaning that the right to keep and bear arms is an
Unalienable Right; there are also other cases that address the issue of States in this matter.
So now that brings us to:
Presser v. Illinois, 116 U.S. 252 (1886): http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=116&invol=252Although the Supreme Court affirmed the holding in Cruikshank that the Second Amendment, standing alone, applied only to action by the federal government, it nonetheless found the states without power to infringe upon the right to keep and bear arms, holding that:
"the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."
Presser, moreover, plainly suggested that the Second Amendment applies to the states through the
Fourteenth Amendment and thus that a state cannot forbid individuals to keep and bear arms. To understand why, it is necessary to understand the statutory scheme the Court had before it.
The statute under which Presser was convicted did not forbid individuals to keep and bear arms but rather forbade:
"bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ."Thus, the Court concluded that the statute did not infringe the right to keep and bear arms.
The Court, however, went on to discuss the Privileges and Immunities Clause of the Fourteenth Amendment, noting that:
"it is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect."As the Court had already held that the substantive right to keep and bear arms was not infringed by the Illinois statute since that statue did not prohibit the keeping and bearing of arms but rather prohibited military-like exercises by armed men, the Court concluded that it did not need address the question of whether the state law violated the Second Amendment as applied to the states by the Fourteenth Amendment.
And now let us not forget the most recent U.S. Supreme Court case:
U.S. v. Miller, 307 U.S. 174 (1939): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=307&invol=174This is the only case in which the Supreme Court has had the opportunity to apply the Second Amendment to a federal firearms statute. The Court, however, carefully avoided making an unconditional decision regarding the statute's constitutionality; it instead devised a test by which to measure the constitutionality of statutes relating to firearms and remanded the case to the trial court for an evidentiary hearing
(the trial court had held that Section 11 of the National Firearms Act was unconstitutional). The Court remanded to the case because it had concluded that:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Thus, for the keeping and bearing of a firearm to be
constitutionally protected, the firearm should be a militia-type arm, i.e. the
common arms of the time, and today that would mean an M-16 rifle - (selective-fire simi automatic / fully automatic).
The very word "militia" itself refers to a military action, and this is what the second amendment, as well as U.S. v. Miller is referring to: The right of the people to form a well regulated militia for the common defense of the country and bearing the
individual common arms of the time.
(So NO this does not mean indiscriminate crew served weapons).
As sited above; the U.S. Code as well as U.S. v. Miller case makes it clear that the militia consists of:
"all males physically capable of acting in concert for the common defense" and also in Miller that:
"when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."And in Miller, in setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to:
"all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barrelled shotgun. Because of course as referenced above in USC 10, 31 the defendants did.
So now after reviewing the U.S. Code Title 10 Section 31 and U.S. v. Miller. It is clear that the second amendment only guarantees the right for the organized and unorganized militia to keep and bear the common arms of the time for the common defense of the country. And after reviewing U.S. v. Cruikshank and Presser v. Illinois, as well as numerous quotes from our founding fathers - that the keeping and bearing of personal private arms is an
unalienable right not dependent on any document because it is a human right that existed prior to any document. And that means you too ladies as well as men over the age of 45.
I know that many of you may not like what I pointed out, but that is our laws as they are written; and it is very important that we not allow ourselves to hypocritally selective only the rights by which we favor, to choose to protect. To do so undermines all of our other rights.
And not to forget to mention that if it is our honorable goal to curtail gun violence; let us not fall into the trap that by outlawing guns this will be accomplished. For repeated history teaches us that the criminal does not abide by laws
(of course this is what makes him a criminal), and so long as there is a market for something, whether it be illegal or not, there will always be a supplier ready to meet the demand. And we can see examples of this in the case of alcohol prohibition, the war on drugs and also with guns in places in the world where guns are outlawed.
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