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the democratic push for gun control has absolutely nothing at all to do with public safety and everything to do with preventing further erosion of voter share.
gun owners are the fastest growing demographic in America.
Wrong.and the Left ignores that the right was given to the people, not the militia
“The left' does no such thing, this is another ridiculous lie from the right.
The Left keeps telling us being the a militia is a requirement.
A strict and literal reading of the 2nd Amendment says so. That is why the judiciary has the power of interpretation.
A strict and literal reading of the 2nd Amendment says so.
a 'strict and literal reading' will inform you that the right was given to the people, not the militia.
No, given the structure of the language of the 2nd, the conclusion is in reference to the premise.
The people have a right to a militia, a militia is necessarily armed, therefore the people cannot be denied the right to arm their militia.
Here's the 2nd :
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.
Basically " to have a good army we need to have guns " . At the time we didn't have a standing army to defend the country .
A literal interpretation of the 2nd Amendment, adhering as much as possible to the words of it and their usage, would be that:
Militias are essential, therefore the arming of militias cannot be prohibited.
Within that strict, literal interpretation, any gun laws that did not affect a militia's having its own arsenal, and using it in the conduct of militia operations, would not infringe on the 2nd Amendment.
taken from A Primer on the Constitutional Right to Keep and Bear ArmsTHE OPERATIVE CLAUSE
Before examining the prefatory language, let us look more closely at the operative clause. It is worth emphasizing at the outset that this language is no more ambiguous or unclear than other provisions of the Bill of Rights. It states with unmistakable clarity that "the right of the people to keep and bear Arms, shall not be infringed." This language is parallel to that used in the First and Fourth Amendments:
- Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.4
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.5
All three amendments were framed together, and the First and Fourth Amendment rights have always been treated as individual rather than governmental rights. The framers of the Bill of Rights were apparently confident, and with good reason, that nobody would ever interpret the First Amendment to create a right that could only be exercised by lobbyists working for the state governments. And they were similarly confident that the Fourth Amendment would not be limited to protecting state bureaucrats from unreasonable searches and seizures. The utter strangeness of the states' right theory of the Second Amendment is immediately apparent when one tries to imagine why the framers of the Bill of Rights would have used an identical phrase-"the right of the people"-to describe two rights indubitably belonging to individual citizens and one right belonging solely to state governments or at most to certain employees of the state governments.
This sense of strangeness is reinforced when one reads the final provision of the Bill of Rights, which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.6
This provision makes it unmistakably clear that the framers of the Bill of Rights knew very well that there is a meaningful distinction between "the states" and "the people." Interpreting the word "people" in the Second Amendment to refer to the state governments requires one to assume that the framers of the text were unbelievably sloppy or whimsical in their use of language. If one is going to make assumptions like that, one might just as well go all the way and assume that the Second Amendment uses the word "arms" to mean the upper limbs of the human body.
The bizarreness of assuming that "the people" means "the state governments" does not quite disprove the collective right theory. Legal draftsmen do make mistakes, including sloppy mistakes. Perhaps more important, legal draftsmen also sometimes assume, and not always justifiably, that their language will be interpreted by people who accept certain unstated premises and shared understandings.
Take, for example, the constitutional provision forbidding the enactment of "ex post facto" laws.7 Many normal users of the English language might not have a clue about the meaning of this term, which isn't in English. Someone who knew a little Latin might easily figure out that it constitutes a prohibition against retroactive legislation. But only someone versed in the law would realize that it might extend only to retroactive criminal laws. As it happens, the "ex post facto" language actually generated some confusion at the Constitutional Convention, and it is less than clear whether there was any consensus about its meaning among those responsible for ratifying the Constitution.
We shall need to be alert to the possibility that the Second Amendment uses language in a way that is foreign to modern or colloquial usage. With respect to the debate between the collective right and individual right interpretations, the only term in the operative clause that might be affected by this possibility is "the people." When we look at the original Constitution, it becomes plain that this term is sometimes used to include only a subset of the entire citizenry. The Preamble, for example, tells us that the Constitution was established by "the people,"8 but we know that many citizens were barred from participating in the state ratifying conventions. Similarly, Article I requires that members of the House of Representatives be elected by "the people,"9 but we know that women were not permitted to vote and that property qualifications were common at the time. So it's not at all impossible that "the people" referred to in the Second Amendment is a subset of the citizenry.
But "the people" still can't be the state governments. The Constitution nowhere uses the term "the people" to refer to state governments. Article I, for example, originally specified that the House of Representatives will be elected by "the people," but that Senators will be chosen by the legislature of each state.10 The importance of the linguistic distinction is confirmed by the Seventeenth Amendment, which created a new rule providing that Senators would be elected "by the people" of each state. Similarly, the members of the electoral college are appointed by each state in whatever way the state legislature directs, which may involve election by the people or some other means.11 The Constitution never identifies the people with their state governments.
Interpreting the Second Amendment so as to identify the people with the state governments-an identification that the Constitution nowhere else even suggests-is far fetched for an additional immediately obvious reason. One of the most basic principles of American political thought-beginning long before our Constitution was made, continuing down to the present day, and unmistakably implied in the Constitution's Preamble-is that the people are sovereign, while legitimate governments are mere creatures of the people. To take only one of countless examples, Chief Justice John Marshall considered the following proposition self-evident: "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected."12 Treating any government as if it were the people would tacitly claim a status for the government that has never been publicly respectable in the United States. There is simply no reason to think that the Second Amendment does any such thing.
THE MILITIA PREFACE
It should come as no surprise that there are so many obvious problems with reading the operative clause of the Second Amendment to protect any sort of right belonging to state governments. If the Constitution had simply provided that "the right of the people to keep and bear arms shall not be infringed," nobody could maintain with a straight face that the provision could mean anything other than that individuals have that right. Doubts about the plain and obvious meaning of that clause have been raised only because of the prefatory phrase "A well regulated Militia, being necessary to the security of a free State . . . . "
Before looking at these words more closely, we should pause to focus on a few things that the Second Amendment does not say:
As these observations suggest, the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
- It emphatically does not say that it protects the right of the militia to keep and bear arms.
- Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well regulated militia, or that a well regulated militia is sufficient for the security of a free state.
- Nor does the Second Amendment say that the right of the people to keep and bears arms is protected only to the extent that such a right fosters a well regulated militia or the security of a free state.
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.13
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
A literal interpretation of the 2nd Amendment, adhering as much as possible to the words of it and their usage, would be that:
Militias are essential, therefore the arming of militias cannot be prohibited.
Within that strict, literal interpretation, any gun laws that did not affect a militia's having its own arsenal, and using it in the conduct of militia operations, would not infringe on the 2nd Amendment.
taken from A Primer on the Constitutional Right to Keep and Bear ArmsTHE OPERATIVE CLAUSE
Before examining the prefatory language, let us look more closely at the operative clause. It is worth emphasizing at the outset that this language is no more ambiguous or unclear than other provisions of the Bill of Rights. It states with unmistakable clarity that "the right of the people to keep and bear Arms, shall not be infringed." This language is parallel to that used in the First and Fourth Amendments:
- Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.4
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.5
All three amendments were framed together, and the First and Fourth Amendment rights have always been treated as individual rather than governmental rights. The framers of the Bill of Rights were apparently confident, and with good reason, that nobody would ever interpret the First Amendment to create a right that could only be exercised by lobbyists working for the state governments. And they were similarly confident that the Fourth Amendment would not be limited to protecting state bureaucrats from unreasonable searches and seizures. The utter strangeness of the states' right theory of the Second Amendment is immediately apparent when one tries to imagine why the framers of the Bill of Rights would have used an identical phrase-"the right of the people"-to describe two rights indubitably belonging to individual citizens and one right belonging solely to state governments or at most to certain employees of the state governments.
This sense of strangeness is reinforced when one reads the final provision of the Bill of Rights, which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.6
This provision makes it unmistakably clear that the framers of the Bill of Rights knew very well that there is a meaningful distinction between "the states" and "the people." Interpreting the word "people" in the Second Amendment to refer to the state governments requires one to assume that the framers of the text were unbelievably sloppy or whimsical in their use of language. If one is going to make assumptions like that, one might just as well go all the way and assume that the Second Amendment uses the word "arms" to mean the upper limbs of the human body.
The bizarreness of assuming that "the people" means "the state governments" does not quite disprove the collective right theory. Legal draftsmen do make mistakes, including sloppy mistakes. Perhaps more important, legal draftsmen also sometimes assume, and not always justifiably, that their language will be interpreted by people who accept certain unstated premises and shared understandings.
Take, for example, the constitutional provision forbidding the enactment of "ex post facto" laws.7 Many normal users of the English language might not have a clue about the meaning of this term, which isn't in English. Someone who knew a little Latin might easily figure out that it constitutes a prohibition against retroactive legislation. But only someone versed in the law would realize that it might extend only to retroactive criminal laws. As it happens, the "ex post facto" language actually generated some confusion at the Constitutional Convention, and it is less than clear whether there was any consensus about its meaning among those responsible for ratifying the Constitution.
We shall need to be alert to the possibility that the Second Amendment uses language in a way that is foreign to modern or colloquial usage. With respect to the debate between the collective right and individual right interpretations, the only term in the operative clause that might be affected by this possibility is "the people." When we look at the original Constitution, it becomes plain that this term is sometimes used to include only a subset of the entire citizenry. The Preamble, for example, tells us that the Constitution was established by "the people,"8 but we know that many citizens were barred from participating in the state ratifying conventions. Similarly, Article I requires that members of the House of Representatives be elected by "the people,"9 but we know that women were not permitted to vote and that property qualifications were common at the time. So it's not at all impossible that "the people" referred to in the Second Amendment is a subset of the citizenry.
But "the people" still can't be the state governments. The Constitution nowhere uses the term "the people" to refer to state governments. Article I, for example, originally specified that the House of Representatives will be elected by "the people," but that Senators will be chosen by the legislature of each state.10 The importance of the linguistic distinction is confirmed by the Seventeenth Amendment, which created a new rule providing that Senators would be elected "by the people" of each state. Similarly, the members of the electoral college are appointed by each state in whatever way the state legislature directs, which may involve election by the people or some other means.11 The Constitution never identifies the people with their state governments.
Interpreting the Second Amendment so as to identify the people with the state governments-an identification that the Constitution nowhere else even suggests-is far fetched for an additional immediately obvious reason. One of the most basic principles of American political thought-beginning long before our Constitution was made, continuing down to the present day, and unmistakably implied in the Constitution's Preamble-is that the people are sovereign, while legitimate governments are mere creatures of the people. To take only one of countless examples, Chief Justice John Marshall considered the following proposition self-evident: "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected."12 Treating any government as if it were the people would tacitly claim a status for the government that has never been publicly respectable in the United States. There is simply no reason to think that the Second Amendment does any such thing.
THE MILITIA PREFACE
It should come as no surprise that there are so many obvious problems with reading the operative clause of the Second Amendment to protect any sort of right belonging to state governments. If the Constitution had simply provided that "the right of the people to keep and bear arms shall not be infringed," nobody could maintain with a straight face that the provision could mean anything other than that individuals have that right. Doubts about the plain and obvious meaning of that clause have been raised only because of the prefatory phrase "A well regulated Militia, being necessary to the security of a free State . . . . "
Before looking at these words more closely, we should pause to focus on a few things that the Second Amendment does not say:
As these observations suggest, the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
- It emphatically does not say that it protects the right of the militia to keep and bear arms.
- Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well regulated militia, or that a well regulated militia is sufficient for the security of a free state.
- Nor does the Second Amendment say that the right of the people to keep and bears arms is protected only to the extent that such a right fosters a well regulated militia or the security of a free state.
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.13
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
