Excellent, thought-provoking commentary at The Price Of Liberty:
During a town hall meeting in northwestern New Hampshire last week, presidential hopeful Rudy Giuliani told a former police office:
“You have a constitutional right, that is protected, to bear and carry arms. It is the Second Amendment. If someone disagrees with that, you have to get the Constitution changed.”
Since Mr. Giuliani is a former federal prosecutor and these individuals’ knowledge of the Constitution appears to be limited to reading court cases, the author decided to use a United States Supreme Court case to show prospective voters, who care about gun rights, that Giuliani is totally ignorant of the nature of the Second Amendment.
Have you figured it out yet? Why was Mr. Giuliani in error when he said that all you would have to do is get the Constitution changed?
In 1875, in the case of United States v Cruikshank, 92 US 542 (1876), the Supreme Court ruled that the rights enumerated in the First and Second Amendments were not granted by the Constitution and were not dependent upon the Constitution for their existence. The Court also ruled that these Amendments were restraints on the powers of the federal government.
In discussing federal powers, the Court said:
“The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.”
Since the right to keep and bear arms was not created by the Second Amendment, it cannot be classified as a constitutional right because, as acknowledged by the Court, the right exists independent of the Amendment. Thus, contrary to the inference by Giuliani, repeal of the Second Amendment would not negate the right. The sole purpose of the Amendment, as stated by the Court, was to restrain the powers of the federal government concerning the right to keep and bear arms.
Giuliani, Second Amendment, Constitution
8 responses so far ↓
1 Leif Rakur // Nov 9, 2007 at 3:06 pm
No matter how favorably or unfavorably the founders and the framers may have viewed the use of arms for hunting, personal self-defense, or insurrection, there is no real evidence that they thought any of those things was what the Second Amendment was about.
The Second Amendment was written to protect the right of the people to keep and bear arms as a well regulated state militia. The amendment was intended as an answer to the complaint that the Constitution had given the federal government too much military power – enough to abolish the state militias and establish an oppressive standing army.
Thomas Jefferson, the most famous active advocate of a Bill of Rights, was dead set against a peacetime standing army. He believed that it was his influence with James Madison on this point that led Madison to draft the Second Amendment.
In a letter to the Scientist Dr. Joseph Priestley in 1802, Jefferson spoke of the Second Amendment, which he had urged upon Madison, as “the substitution of militia for a standing army.”
2 Shamalama // Nov 9, 2007 at 5:10 pm
The Second Amendment was written to protect the right of the people to keep and bear arms and to be a well regulated state militia as a guarantee against oppression.
As used in the Second Amendment, and elsewhere in the Constitution, “Militia” referred to a body consisting of all adult male citizens up to a certain age (anywhere from forty-five to sixty), the goal being to include all who were physically capable of service. It was not limited to a select force of persons in active military duty. This entire population of able-bodied male citizens was involuntarily “enrolled” by local militia officials, somewhat as men now register for the selective service (except that enrollment required no action by the citizen), and all enrolled citizens were required by law to join occasional “exercise” – to which they were expected to bring their own, private arms – but they otherwise remained in civilian life.
Securing to “the people” a right to keep and to bear their own arms made such a broad-based, privately armed force, or militia, more likely to exist and to be effective.
The common man was the militia, otherwise defined as the whole body of able-bodied male citizens declared by law as being subject to call to military service, and it was for the self-protection of the common man that the Founders wrote the Second Amendment. The Second Amendment was not written specifically for a force that had already been organized into a military unit.
3 Leif Rakur // Nov 9, 2007 at 7:52 pm
“The Second Amendment was not written specifically for a force that had already been organized into a military unit.”
Unless I misunderstand the above assertion, I have to disagree. Well regulated state militia units already existed under state legislation at the time the Second Amendment was written in 1789. The Second Amendment was written to assure that the federal government would not prevent the states from keeping them up for use in their own defense.
For instance, Pennsylvania’s well regulated militia, at the time of the Second Amendment, had been legislated in 1780. It consisted of all nonexempt men between the ages of 18 and 53. Under the law the militiamen were formed into companies and larger units and were required to train at regularly specified times.
4 Shamalama // Nov 11, 2007 at 10:18 am
Pennsylvania adopted its Declaration of Rights in September 1776. Article 13, immediately following an article providing “[t]hat the people have a right to freedom of speech,” read:
“That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power .”
The article does not restrict the right to those in militia service, which it does not mention and which Pennsylvania addressed separately.
Pennsylvania held another convention from November 1789 through September 1790, as the Second Amendment was before the States for ratification. The resulting constitution retained essentially the same individual right. Section 21 of the declaration of rights, immediately following a section providing “[t]hat the citizens have a right” to assemble and petition, provided:
“That the right of the citizens to bear arms, in defence of themselves and the State, shall not be questioned.”
Separately, in the body of the constitution, the protection of conscientious objectors was combined with the provision relating to the citizen militia.
The right of individual English subjects to simply keep and bear arms themselves was transplanted to America. Americans also, from their experience in the American Revolution, came to emphasize the citizen militia, which they recognized was furthered by the individual right to private arms. But the English right as Americans came to understand it was not, as a result, somehow newly restricted to a person’s service in that militia, much less to service in a select militia. Nor did early Americans see the right as a federalism protection (which would not have made sense in the context of state constitutions) or otherwise the property of the state rather than its citizens.
The entire concept of keeping arms was granted to individuals that, in time of unrest, could be called for the common defense into a militia of citizens, completely different from a standing army (which the Founders didn’t want). But during time of peace the right of individuals to keep and bear arms for their own personal defense was still as applicable.
The Second Amendment was written to protect the right of the people to keep and bear arms as free men and as a well regulated state militia.
5 Leif Rakur // Nov 12, 2007 at 2:00 am
The Second Amendment was written to support the continuation and effectiveness of the well regulated state militias.
Those state militias, including the Pennsylvania militia that was under the regulation of Pennsylvania’s militia act of 1780, already existed when the Second Amendment was written. In Pennsylvania, at that time, the militia consisted of all nonexempt men between the ages of 18 and 53, enrolled in companies, mustered, and trained as part-time soldiers according to an established schedule. The militia did not consist merely of an unorganized, untrained mass of the male population at large, waiting to be called “into a militia of citizens.”
As you stated earlier, the sole purpose of the [Second] Amendment, as stated by the court, was to restrain the powers of the federal government .
But there is nothing in the amendment that addresses protection for an individual right for hunting, self-defense, or insurrection. However you want to interpret the Pennsylvania 1776 Declaration of Rights provision which says, “That the people have a right to bear arms for the defence of themselves and the state…,” it’s quite obvious that the Second Amendment has a different wording (even though both use the phrase “bear arms”)
The meaning of the term “bear arms,” when used in an entirely military context, is important to understanding the Second Amendment. Eighteenth-century Americans generally understood that, when used in a wholly military context, the term was a reference to military service only. If you wanted the term to embrace uses other than the military, you had to include words that said so — words like “bear arms for defence of themselves and their own state, or the United States, or for the purpose of killing game” These are words that were used by the Pennsylvania Minority, whose proposals for amending the Constitution were rejected at Pennsylvania’s ratification convention. In the Second Amendment, the word “keep” is not such a redefining word, since military arms are obviously “kept,” just as nonmilitary arms are kept .
The military use of “bear arms” is demonstrated by its use in Article VI, Sec. 2, of Pennsylvania’s constitution of 1790:
“The freemen of this commonwealth shall be armed and disciplined for its defence. Those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal service. The militia officers shall be appointed in such manner and for such time as shall be directed by law.”
The Pennsylvania constitution exempted conscientious objectors from bearing arms much as Madison had proposed to do in the draft of the Second Amendment he prepared for Congress.
6 Shamalama // Nov 12, 2007 at 12:21 pm
So nine out of ten of the amendments contained in the Bill of Rights were written to protect the rights of individuals, while one, the Second, was written to protect the rights of government (or government-controlled entity, the militia)?
That’s a hard argument to swallow.
Good thing this is before the Supreme Court.
7 Leif Rakur // Nov 13, 2007 at 2:21 pm
Once you recognize that the Second Amendment is a restraint only against the federal government, as you have said you do, it’s hard to explain why the framers would have wanted an individual-gun-rights amendment.
The respective states in 1789 already had militias under state militia law. All men considered capable of bearing arms were required to supply their own arms as militiamen. It doesn’t seem at all likely that the framers would have thought it necessary to protect (against federal infringement) the right of individuals to comply with their own state’s militia laws.
The concern of the anti-federalists and others (such as Thomas Jefferson) was that the federal government not use its constitutional powers in a way that would abolish state militias or make them ineffective. The fear that an oppressive standing army would be instituted in place of the militia was what was on their minds and was what the Second Amendment was intended to guard against.
8 Shamalama // Nov 13, 2007 at 3:46 pm
Well, then we have to disagree. It is my understanding through the reading of historical documents, quotations by the Founders, and all but recent history in the US, that I believe the Second Amendment was created to protect the rights of individuals to own and use weapons both for the defense of their states via a people’s militia as well as the defense of their own selves, the hallmark of true freedom.
I urge you to read the “DOJ Report on the Second Amendment, 2004″ linked on this site.
“No freeman shall ever be debarred the use of arms.” – Thomas Jefferson. Note he didn’t use the word “militiaman”.
“The great object is, that every man be armed.” – Patrick Henry. This is another Founder that saw this right as belonging to all free people, not an organized military force.
“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man.” – John Adams. Private self-defense can only be deemed to apply to individuals, not any organized military force.
“No free man shall be debarred the use of arms within his own lands or tenements.” – Thomas Jefferson. Not “no militia member”, but “no free man”. Not “on the battlefield”, but “within his own lands”.
“[W]hereas, 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. This “whole body of people” cannot mean any organized military force or militia.
“The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals.” – Albert Gallatin. Why does everyone apply all other 9 rights to individuals but work so hard to deny to individuals the remaining 1?
“The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” – Noah Webster. The “whole body of the people” cannot be taken to mean any militia.
“It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The meaning of the provision, undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.” – Michigan Supreme Court Justice Thomas Cooley. Individual ownership of firearms enables the creation of a militia in time of need, not vice versa.
“Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams. No militia, just free men.
“Thus, concerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second Amendment should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.” – Justice Scalia.
“Firearms stand next in importance to the Constitution itself. They are the people’s liberty teeth keystone… the rifle and the pistol are equally indispensable… more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour.” – George Washington. People’s liberty, firearms everywhere – this doesn’t sound like a simple militia right.
“[B]e never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” – Samuel Adams
“Last Monday a string of amendments were presented to the lower house; these altogether respect personal liberty.” – William Grayson in letter to Patrick Henry. Personal, not organizational, liberty.