Second Amendment to the United States Constitution: Difference between revisions

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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.
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[[/AmendmentTwoTalk]]
The '''Second Amendment''' to the [[United States Constitution]], part of the [[United States Bill of Rights|Bill of Rights]], prevents the federal government from infringing on the right to keep and bear firearms.

==Text==
<blockquote>
''A well regulated [[Militia]], being necessary to the security of a free State, the right of the people to keep and bear [[firearm|Arms]], shall not be infringed.''
</blockquote>

==Collective and individual rights==
Judicial decisions on the Second Amendment are scarce, so its meaning is a matter of dispute. Some argue a "collectivist model," whereby the "well regulated militia" clause is regarded as a qualifier that restricts the right to only those sworn members of a government-controlled armed body. On these grounds, these interpreters assert that the Second Amendment does not relate to private citizens in any manner. They claim that the Second Amendment was only intended to protect the power of the states to maintain state militia against the interference of the federal government. They regard firearm ownership as a privilege granted to private citizens at the discretion of government.

Others, argue for the "individual rights model". They maintain that the "militia" clause does not set any prerequisite to the exercise of the right to keep and bear arms at all; rather it is a phrase justifying the protection of the right. Gun rights advocates also point out that in the Colonial Era "militia" specifically referred to the armed citizenry as a whole (as distinct from an "organized militia" which was a government-controlled body such as a standing army). On these grounds, these interpreters assert that the Second Amendment protects the individual citizens' pre-existing right to keep and bear arms, whether the government agrees or not. In addition, gun rights advocates state that even if the Second Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes. The individual rights model is bolstered by observing that the phrase "...the right of the people" also appears in the First Amendment, protecting "... the right of the people to peaceably assemble...". Since all other Amendments protect individual rights, it would seem the same words in the Second Amendment mean the same thing.

Both gun rights advocates and gun control advocates point to ''[[United States v. Miller]]'' ([[1939]]), being the only Supreme Court accepted case which partly stood on the Second Amendment, which states in part: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less that 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 is use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily 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."

Both sides in the gun rights debate claim that the Miller ruling supports their positions. The gun control advocates tend to focus on "we cannot say that the Second Amendment guarantees the right", "ordinary military equipment" and "contribute to the common defense." From these phrases they claim that a person must be a sworn member of a government-controlled armed body and must only be in possession of a government-approved type of firearm for the Second Amendment to apply at all.

Gun rights advocates assert that since Miller was certainly not a member of any "government-controlled armed body", then (by the assertions of the gun control advocates) the Court's decision would have had no reason to mention anything further than his lack of militia membership to reject his claims of protection by the Second Amendment. Further, gun rights advocates argue that the Court did not say that this type of firearm was not protected, but simply that no evidence had been presented in the official record ("not within judicial notice") to show that "such an instrument" could potentially be of use towards a well regulated militia, which was what the court was asking for by saying: "In the absence of any evidence tending to show...some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court did not state that the owner of such a firearm needed to actually be in a "well regulated militia" for the Second Amendment to protect his right to own such a firearm, merely that the firearm could be of some use towards "the preservation or efficiency" of such a militia for the Second Amendment to apply.

It is important to note that nobody appeared in either the Appeals Court, nor the Supreme Court for the accused, Miller, nor to argue the side of the Second Amendment protecting the individual rights to keep and bear arms, nor even to state the fact that sawed-off shotguns were indeed in common use by not only organised militias, but were also common issue to [[US Army]] soldiers who fought in [[World War I]]. In fact, short-barreled shotguns were normal issue for the US Army right through the [[Vietnam War]] and various [[Special Forces]] units still use them today. The complete lack of representation for the gun rights side of these issues in Court is probably due to Miller's murder, which had occurred long before the issue got through the appeals process.

For sixty years, the [[executive branch]] of the US government also rejected the individual rights interpretation. This changed in 2002; a brief filed by [[John Ashcroft]]'s [[United States Department of Justice|Justice Department]] states: the amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse".

The most recent federal court ruling to touch on the issue is that of the [[United States Court of Appeals for the Fifth Circuit|5th Circuit Court of Appeals]] in [[2001]] in ''[[United States v. Emerson]]''. The justices support the position taken by Ashcroft in their 77-page decision. Notably they state that the ''United States v. Miller'' judgment applied only to a narrow category of firearm not typically carried by individuals. Secondly, as regards to the "right" to bear arms expressed in the Second Amendment, the justices state that "as used throughout the Constitution, 'the people' have 'rights' and 'powers,' but federal and state governments only have 'powers' or 'authority', never 'rights.'" Furthermore, "There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words 'the people' have a different connotation within the Second Amendment than when employed elsewhere in the Constitution."

The [[Ninth Amendment to the United States Constitution]] also potentially supports individual rights to self-defense, and to keep and bear arms.


==Semantic issues==
'''''Arms''' had different [[Extension (semantics)|'''extensive''']] meaning in 1789''
:1789 "arms" included flintlock rifles, pistols, swords, bayonets, and cannons, so some argue that such is all that the Second Amendment was meant to protect -- not shotguns, not automatic rifles, nor grenade launchers, nor any weapons of mass destruction. Others contend that if one were to follow that line of reasoning, freedom of speech and of the press would not include radio, nor TV, nor the Internet.

'''''Infringe''' possibly had a different [[Intension|'''intensive''']] meaning in 1789''
: There is some disagreement over what the word ''infringe'' means. Relevant to this are definitions given in the [[1828]] [[Webster's Dictionary]] [http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe], all of which give a sense of the complete ''removal'' of a right, not to ''encroachment'' nor to ''abridgement'' that is now one meaning of the word. It remains an open question whether or not the 1828 dictionary definition was a complete account of usage of the word at that time. According to the Encarta dictionary [http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861621241] ''infringe'' entered the English language about 1550 from the French word ''frangere'' meaning "to break", and is the source of the word ''fracture''. An early appearance is in Shakespeare's ''Measure for Measure''. The [[Supreme Court of the United States]] has repeatedly permitted to stand many [[gun politics|gun-control]] laws, all of which would seem to constitute ''abridgements'' on Second Amendment protections without completely ''removing'' them.

<!-- However, the usage of the same concept of infringement or violation by [[John Locke]], the central influence of the Founders, in the [http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke2nd-d.html#CHAP.%20XIX. ''Second Treatise on Civil Government''] (1690) explicitly stated that even a relatively minor infraction against the natural law could morally justify a revolution. Locke responded pre-emptively to potential critics by saying that people would not in practice revolt over the first, minor violation and would instead wait for what the Americans in the [[Declaration of Independence]] called "a long train of abuses and usurpations." Locke's philosophical concept almost certainly guided the constitutional authors in this manner, therefore suggesting that ''infringe'' had the same intensive meaning we use today to mean ''encroachment''.
Please see talk page regarding why above comment has been removed -->

==Examples of disarmament before the 2nd Amendment passed==
* Just prior to the [[American Revolution]], British troops were seizing gunpowder and cannons (some of which are fairly well-documented to have been stolen from the British) from armories.
* About 1680, King [[Charles II of England]] used the Militia Act to disarm his [[Whig]] opponents.
* In 1686, [[Catholic]] King [[James II of England]] made use of both the Militia Act and the Game Act to disarm his [[Protestant]] opponents. After he was deposed, the English [[Bill of Rights 1689]] included perhaps the first written articulation of a right to bear arms.
*: ''That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law''

==Punctuation==
The exact punctuation of the Second Amendment is sometimes debated. At the time of the drafting of the Constitution and the Second Amendment the rules of punctuation were loose and varied by author, not considered as meaningful as modern usage of punctuation is today. This lack of importance attached to punctuation often leads to various mis-interpretations when readers try to attribute meaning to the placement of the commas in the original text of the Second Amendment.

==See also==
*[[Gun politics in the United States]]

==External References==
*[http://sources.wikipedia.org/wiki/Constitution_of_the_United_States_of_America ''Constitution of the United States'']
*[http://www.gpoaccess.gov/constitution/browse.html Kilman, Johnny and George Costello (Eds). (2000). ''The Constitution of the United States of America: Analysis and Interpretation'']
*[http://www1.law.ucla.edu/~volokh/2amteach/sources.htm Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions]
*[http://www.constitution.org/mil/rkba1982.htm Right to Keep and Bear Arms Report of the Senate Subcommittee on the Constitution, February 1982]
*[http://65.66.134.201/cgi-bin/webster/webster.exe?search_for_texts_web1828=infringe 1828 meaning of ''infringe'']
*[http://www.usdoj.gov/olc/secondamendment2.htm Whether the Second Amendment Secures an Individual Right, August 24, 2004]<br>

{{US Constitution}}
[[Category:U.S. Constitution|Amendment 02]]
[[Category:Firearm laws]]

Revision as of 04:45, 15 January 2005

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.


/AmendmentTwoTalk