Understanding the Second Amendment

patriotAbout a year ago, we posted an article about U.S. Senator Kay Bailey Hutchison (R-TX). Hutchison led the charge in the U.S. Congress to get members of both houses to support the Second Amendment. She, and 54 other Senators, along with 250 U. S. Representatives and Vice President Dick Cheney signed on to one of the many amici filed in support of the Heller position in the landmark D.C. vs. Heller case.

I recently happened to look at the amicus prepared on behalf of Hutchison and the Members of Congress by Constitutional Expert and Attorney Stephen P. Halbrook. Halbrook’s amicus recalls that the Congress has a long history of protecting the right of the people to keep and bear arms. Like the rest of the Bill of Rights, the Second Amendment was proposed to the States by the Congress in 1789. On several occasions, in different epochs of American history, the Congress enacted statutory texts which explicitly declared its understanding of the Second Amendment as guaranteeing fundamental, individual rights.

The Second Amendment text is as follows:

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.

That’s good - the Founders boiled it down to specific, unambiguous language. In it, there are five key nouns - ‘militia,’ ‘state,’ ‘right,’ ‘people‘ and ‘arms.’ There are two key verbs - ‘keep‘ and ‘bear.’ Keep these keywords in mind as you continue to read.

The phrase “the right of the people” also appears in the First Amendment – “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

Opponents of Second Amendment rights want you to think that this identical wording means something different in the First and Fourth Amendments. You can’t have it one way with freedom of dissent and freedom from search and seizure, and a completely different meaning when it comes to the ‘right of the people‘ to keep and bear arms.

The constitutional text distinguishes between “the people,” “the militia,” and the “States.” The Second Amendment refers to “a well regulated militia,” but the right to keep and bear arms is guaranteed to “the people.”

That’s quite clear: militia does not equal people. The ability of the militia to provide security on behalf of the state depends on the right of the people to own and bear arms. The ability of individuals to provide for their own security, likewise, depends on this right.

The Second Amendment refers to the right to “keep” arms (such as at home) as well as to “bear” arms (meaning to carry them). Protected arms include commonly-kept firearms that one can keep and carry for lawful purposes, such as ordinary rifles, handguns, and shotguns, and not crew-served or heavy weapons.

Despite laws to the contrary, every law-abiding citizen who has reached majority should have the right to own and carry his/her gun at all times.

And now, the meaning of “state” . . .

The Amendment declares a well regulated militia to be necessary to the security of a “free State,” which means a free country, and is not restricted to a State government.

Halbrook, in the Congressional Amicus for Heller, decomposes the language of the Second Amendment into its component parts to reveal the true meaning of the Founders. If you read the Complete Brief (PDF) prepared by Halbrook, you can discover some of the history about how the Second Amendment evolved into its present form.

Don’t forget to check out Stephen Halbrook’s Second Amendment Book Bomb.

4 Comments

  1. lakotalady said,

    February 17, 2009 @ 07:34:44

    Great blog! Have you heard about the bill just introduced to the House, H.R. 45 was filed in the House of Representatives by Rep Rush, Bobby L.[IL] on January 6, 2009. This bill will impose severe restrictions for licensing on gun ownership. What this means is that two years after the passage of this bill, all firearms in your possession must be registered. And Eric holder was confirmed as Attorney General. Eric Holder has a very anti gun record. Man they just don’t give up do they! Your site is so well put together I put it on my blogs to follow! I GOD BLESS AMERICA!

  2. Cap'n Bob said,

    February 17, 2009 @ 10:24:55

    Thanks lakotalady,

    We did an article on Congressman Rush’s HR45 a while back - Rush to Ban Guns.

    We think that HE should submit HIS mental health records and be subjected to psychiatric examination after such an insane bill.

  3. altrurian said,

    April 16, 2009 @ 14:51:18

    I agree with the irrefutable parsing of the amendment that you have provided. It seems rather straight forward. It just doesn’t have relevance anymore. You can’t make that argument about any of the other amendments in the “Bill”. 320 million folks “bearing” arms is unthinkable. Get real.

    Surely even you recognize the ludicracy of the epithet “anti-gun”. Who in their right mine wouldn’t be against, in the abstract sense, an artifact designed to kill.

    Let’s repeal the thing on its face value and get on with it.

  4. Cap'n Bob said,

    April 16, 2009 @ 17:47:51

    “It just doesn’t have relevance anymore.”

    Let me point out that these very arguments were used in the recent D.C. vs. Heller Case before the Supreme court, i.e. the Washington D.C. gun ban. The majority found in favor of the defendant and it is again legal to possess firearms in D.C. for home protection. Think about it and you will find this is a good thing (hint: find out the average response times for 911 calls).

    “320 million folks “bearing” arms is unthinkable. Get real.”

    For you, perhaps. For me (and millions of other Americans), a person trained in the use and application of firearms who regularly drills and does target practice it’s not “unthinkable.” I have military training and have owned guns for over 45 years. I have a permit to carry a loaded concealed handgun in more than half the states in the union (including Minnesota). My weapons have never leaped into my hands and caused me to do harm to anyone or anything other than taking game and fending off varmints.

    “an artifact designed to kill”

    My guns are designed for protection, defense, hunting and sport. Any other definition is “an artifact of your perception.” Who “in their right mind” would deprive me (and millions of other Americans) of those purposes?

    “Let’s repeal the thing on its face value and get on with it.”

    I say that we keep the Bill of Rights intact, and allow those not comfortable with it move north of the 49th parallel, where they don’t have such a pesky artifact. “Get on with it.”

    I would have to say that your nom de plume, derived from altruism, a selfless concern for the welfare of others, does not fit your agenda when it comes to personal defense and the protection of liberty.

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