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The Second Amendment, the Bill of Rights, and the …

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Jun 242016
 

In 1803 a distinguished Virginia jurist named St. George Tucker published the first extended analysis and commentary on the recently adopted U.S. Constitution. Though it is mostly forgotten today, Tucker’s View of the Constitution of the United States was a major work in its time. In the early decades of the nineteenth century, generations of lawyers and scholars would reach for Tucker’s View as a go-to constitutional law textbook.

I was reminded of Tucker’s dusty tome in recent days after reading one liberal pundit after another smugly assert that the original meaning of the Second Amendment has nothing whatsoever to do with individual rights. Slate’s Dahlia Lithwick, for example, denounced the individual rights interpretation of the Second Amendment as a “a hoax” peddled in recent years by the conniving National Rifle Association. Likewise, Rolling Stone’s Tim Dickinson complained that “the NRA’s politicking has warped the Constitution itself” by tricking the Supreme Court into “recast[ing] the Second Amendment as a guarantee of individual gun rights.”

Old St. George Tucker never encountered any “politicking” by the NRA. A veteran of the Revolutionary war and a one-time colleague of James Madison, Tucker watched in real time as Americans publicly debated whether or to ratify the Constitution, and then watched again as Americans debated whether or not to amend the Constitution by adopting the Bill of Rights. Afterwards Tucker sat down and wrote the country’s first major constitutional treatise. And as far Tucker was concerned, there was simply no doubt that the Second Amendment protected an individual right to arms. “This may be considered as the true palladium of liberty,” Tucker wrote of the Second Amendment. “The right of self-defense is the first law of nature.”

The individual rights interpretation of the Second Amendment was widely held during the founding era. How do we know this? Because the historical evidence overwhelmingly points in that direction. For example, consider the historical context in which the Second Amendment was first adopted.

When the Constitution was ratified in 1789 it lacked the Bill of Rights. Those first 10 amendments came along a few years later, added to the Constitution in response to objections made during ratification by the Anti-Federalists, who wanted to see some explicit protections added in order to safeguard key individual rights. As the pseudonymous Anti-Federalist pamphleteer “John DeWitt” put it, “the want of a Bill of Rights to accompany this proposed system, is a solid objection to it.”

Library of CongressJames Madison, the primary architect of the new Constitution, took seriously such Anti-Federalist objections. “The great mass of the people who opposed [the Constitution],” Madison told Congress in 1789, “dislike it because it did not contain effectual provision against encroachments on particular rights.” To remove such objections, Madison said, supporters of the Constitution should compromise and agree to include “such amendments in the constitution as will secure those rights, which [the Anti-Federalists] consider as not sufficiently guarded.” Madison then proposed the batch of amendments that would eventually become the Bill of Rights.

What “particular rights” did the Anti-Federalists consider to be “not sufficiently guarded” by the new Constitution? One right that the Anti-Federalists brought up again and again was the individual right to arms.

For example, Anti-Federalists at the New Hampshire ratification convention wanted it made clear that, “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Anti-Federalists at the Massachusetts ratification convention wanted the Constitution to “be never construed…to prevent the people of the United States, who are peaceable, from keeping their own arms.”

Meanwhile, in the Anti-Federalist stronghold of Pennsylvania, critics at that state’s ratification convention wanted the Constitution to declare, “that the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”

One of the central purposes of the Second Amendment was to mollify such concerns by enshrining the individual right to arms squarely within the text of the Constitution. Just as the First Amendment was added to address fears of government censorship, the Second Amendment was added to address fears about government bans on private gun ownership.

Like it or not, the idea that the Second Amendment protects an individual right is as old as the Second Amendment itself.

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The Second Amendment, the Bill of Rights, and the …

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The Second Amendment Is About Revolution

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Jun 212016
 

Last week, Rolling Stone published an article by David S. Cohen, a law professor who thinks the Second Amendment should be repealed. The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact, writes Cohen. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

In the wake of the Orlando massacre, Cohen reasons, now is the time to acknowledge a profound but obvious truththe Second Amendment is wrong for this country and needs to be jettisoned.

This isnt the first time liberals have mused out loud about whether the Second Amendment is really necessary, or whether it really means individuals have a right to own guns. But tragedies like Orlando seem to revive all the old arguments. Not that commentators are very knowledgeable about the weapons theyd like to ban. An AR-15, for example, cant fire 700 rounds per minute, nor can any guy whos taken a shop class modify a semi-automatic rifle into a fully automatic in five minutes, as Michael Moore seems to think.

But even if an AR-15 only fires once every time you squeeze the trigger, even if it cant be easily converted into an automatic, just taking the rifle for what it is, liberals want to know: who needs a gun like that? How many rounds do you need to be able to fire per minute to kill a deer, or ward off a burglar? Does anyone really need a 25-round magazine? Isnt the only reason for such firepower to make killing people as efficient as possible? Isnt this a weapon of war? Why would American civilians need to own weapons of war?

Turns out, thats precisely the right question to ask. The Second Amendment, after all, doesnt recognize our right to hunt deer or protect ourselves from criminals. Owning guns certainly makes doing those things easier, but its not why the Founders bothered to codify gun rights. They were getting at something elsethe right of revolution.

Simply put, the purpose of the Second Amendment is to give the people the means to overthrow the government in the event it becomes tyrannical.

Most gun control advocates scoff at this. Indeed, its an argument that even some conservatives are hesitant to make. How could the people, armed with rifles and pistols, overthrow the government? On its face, it seems absurd.

More on that in a minute. But first, consider that the Second Amendment is unique among the amendments enumerated in the Bill of Rights because it contains a kind of explanatory preamble: 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.

Edward J. Erler, a political science professor at California State University, San Bernardino, and an expert on the Second Amendment, has argued that the right of revolution is asserted in the Declaration of Independence, which states that governments derive their just powers from the consent of the governednot every power, only just powers, which the people delegate to a government that is by definition limited to the purposes for which it was established, the Safety and Happiness of the people. Furthermore, the Declaration states that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government. Erler says this is what has come to be known as the right of revolution,

an essential ingredient of the social compact and a right which is always reserved to the people. The people can never cede or delegate this ultimate expression of sovereign power. Thus, in a very important sense, the right of revolution (or even its threat) is the right that guarantees every other right. And if the people have this right as an indefeasible aspect of their sovereignty, then, by necessity, the people also have a right to the means to revolution. Only an armed people are a sovereign people, and only an armed people are a free peoplethe people are indeed a militia.

In recent years an argument has become popular on the American Left that the Second Amendment means only that a well regulated militia has the right to bear arms, not individuals. The idea is that, say, the State of Texas can form a militia and arm it accordingly, but individual Texans have no inherent right to the private ownership of firearms.

In 2008, the U.S. Supreme Court repudiated this idea in the case of District of Columbia v. Heller. The late Justice Antonin Scalia wrote the opinion for the majority and quoted Blackstones Commentaries on the Laws of England, which recognizes the natural right of resistance and self-preservation. Scalia insisted that the Second Amendment acknowledges rights that predate the Constitution, such as the right of revolution.

But Erler argues that Scalia was wrong to imply that Second Amendment rights were codified from the common lawthey were, in fact, natural rights, deriving their status from the Laws of Nature and of Natures God. Like the right to revolution, the right to self-defense or self-preservation can never be ceded to government.

So what does this mean in practice? Are we to conclude that the Founders imagined a day when civilians armed with AR-15s and Glocks might one day march on Washington DC if the government ever became tyrannical? If the Second Amendment guarantees our right to the means of revolution, does that mean civilians should also be allowed to own tanks and artillery?

Not quite. The Founders thought standing armies were a threat to liberty, which means they surely would have thought that standing private armies constituted the same threat. Self-preservation and self-defense might be natural right, but even in Heller the Supreme Court indicated that there could be reasonable limitations on gun ownership.

To answer the scoffers on the Left, though, imagine what an American revolutionthe exercise of first principlesmight look like in the twenty-firstcentury. The government, or a branch of it (most likely the executive) becomes destructive to the ends for which it was established. It tyrannizes the people, takes their property, deprives them of their rights, destroys their lives. A revolution, or an abolishment of that government, would likely not be a civilian undertaking but a military one. Working in conjunction with other branches of the federal government and perhaps some state governments, the military would effect a coup dtat.

It would likely be a kind of civil war, and civilians would likely be caught up in it at some point. Perhaps they would form local militias to defend their homes and businesses. Perhaps they would volunteer their services to military commanders or state police forces. Perhaps they would simply want to ensure the safety of their families.

To do any of that, they would need to be armed. Just as the Founders envisioned.

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The Second Amendment Is About Revolution

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Yeah, About That Second Amendment

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Jun 192016
 

Source: Jim Jesus / YouTube.com

The Second Amendment of the United States Constitution reads: “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.”

While there have been countless debates, tests and judgments that have defined and re-defined how to interpret this amendment, the current prevailing interpretation and belief in America is that individual gun ownership is a constitutional right. As a result, America has seen a steady and consistent stream of deregulation around gun ownership, even as mass shootings appear to be on the rise. As progressives get increasingly concerned about the gun culture in America, as a tactic, they try to make their case by comparing gun ownership to other safety-related, common-sense laws:

While certainly humorous while making a practical point, this tweet burn completely misses the larger point: people don’t have a constitutional right to buy Sudafed. You simply cannot compare a constitutional right to anything else not on the fundamental rights playing field.

This lack of focus on the constitutional argument is where progressives have lost their way. They have been so focused on the practical utility of public policy that they end up losing the larger fights that define America. Constitutional interpretation lends itself to a more strategic (and philosophical) debate platform than arguing the facts and stats on how laws can and should protect people. Constitutional theory is the debate platform that conservatives have been playing on for decades while progressives get frustrated and lose ground.

The remarkable irony is that the wording and intent within the Second Amendment is actually on progressive’s side. In fact, the Second Amendment is a progressive’s dream: the third word in the amendment is “regulated” for heaven’s sake.

No matter the interpretation of every other word and phrase after the first three words, the entire context of the amendment is that it will be a regulated right. Through this lens, the Second Amendment is barely even comparable to the First Amendment in terms of what rights it enables. There is simply no language in the First Amendment that regulates the right to free speech… and yet we still regulate speech despite the unassailable strength of the the First Amendment constitutional language

The upshot? Even in today’s hardcore gun rights environment and culture, the Constitution itself provides the guidance — and mandate — to not just regulate militia (i.e., groups of people) and arms, but to regulate them well.

How our culture defines “well” can and will certainly evolve over time, but we shouldn’t let gun rights ideologues and arms industry special interests continue to convince the public that they’re the only ones who have the Constitution on their side in this debate.

Yes, current Supreme Court interpretation is that every citizen has the right to bear arms. But it’s also constitutionally mandated that we regulate these armed people (i.e., militia) and their arms well. Seeing as the right to bear arms has been implemented pretty effectively in America, perhaps now it’s time to start implementing regulation well too, as the Constitution also mandates.

Editor’s note: On 6/18, I revised the article to include people (i.e., militia)” as well as arms, because I originally mistakenly linked regulation only to arms, not the people who have the right to own them

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Yeah, About That Second Amendment

Don’t Bank On The Supreme Court To Clarify The Second …

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Jun 172016
 

If you think the Supreme Court is poised to expand or restrict gun rights sometime soon, don’t hold your breath.

As handwringing continues over what might have prevented the Orlando massacre– an old-time filibuster sparked by it even broke outin the Senate on Wednesday — the justices are about to consider a state gun control law enacted in the aftermath of the Sandy Hook school massacre in Newtown, Connecticut.

According to its docket, the court on Thursday will weigh whether to take up Shew v. Malloy, a case with all the elements that could make it emblematic for the battle over the Second Amendment’s meaning.

It’s a dispute between a host of gun rights groups, businesses and individual gun owners against Connecticut over the constitutionality of a sweeping regulatory regime that bans so-called “assault weapons” — semiautomatic firearms and large-capacity magazines of the very sort used in Newtown and Orlando.

Back in October, an appeals court in Manhattan said the Connecticut law and a similarly restrictive law in New Yorkwere constitutional –and the plaintiffs vowed to take the battle to the Supreme Court.

Tom King, the head of New York’s biggest gun rights group, even said he was “happy” to have lost the case because that meant his organization could now ask the highest court of the land to decide the issue once and for all.

Brendan McDermid / Reuters

But then Justice Antonin Scalia died. And suddenly,the gun lobby’s calculations changed — including King’s, who told the New York Daily News weeks after Scalia’s death that it was “just the wrong time” to continue the fight in the absence of a reliable conservative vote at the Supreme Court.

That might explain why Senate Majority Leader Mitch McConnell (R-Ky.) glowingly pointed to the National Rifle Association’s opposition to Merrick Garland, the president’s high court nominee, to rationalize his own refusal to hold a vote and a hearing for Garland.

None of this matters, and yet it matters a great deal.

Because despite the pleas from gun rights advocates who still want the Supreme Court to take up the challenge to the weapons ban, the justices could wield all kinds of reasons not to touch the case with a 10-foot pole.

It’s not that they aren’t interested in clarifying the scope of the Second Amendment in the wake of Scalia’s magnum opus in District of Columbia v. Heller, which for the first time recognized a fundamental right to gun ownership in the home. But to echo King, it’s just not the right time — not with a short-staffed Supreme Court, a volatile political environment, and a nomination fight that may very well continue after President Barack Obama’s successor takes office.

As things stand now, all signs point to an extremely quiet and uncontroversial Supreme Court term beginning next October — a dry season that will stand in stark contrast to the current term’s constitutional blockbusters on affirmative action, abortion and immigration, to name only a few.The court just isn’t taking many new cases.

This paucity of potential big decisions aside, the courthassent some signals that the Second Amendment is safe, even as it has rejected dozens of cases challenging gun control measures across the country, leaving lower courts as the final decision-makers.

Over the protest of Scalia and Justice Clarence Thomas, the Supreme Court refused in December to review an appeals court decision that effectively upheld an assault weapons ban in a small Illinois town. Thomas said that decision treated the Second Amendment as a second-class right.

But in March, a month after Scalia’s death, the justices tipped their hand the other way, ruling that a Massachusetts ban on stun guns may violate the right to bear arms, quietly but forcefully endorsing the late justice’s Heller decision.

The Second Amendment extends … to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” the court said in a very brief rulingthat no justice signed his or her name to.

But writing separately, Thomas and Justice Samuel Alito said they would have gone further, asserting that indeed, gun ownership for self-defense is a “fundamental right” while making clear that Americans’ safety shouldn’t be “left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

Fighting words, as well as fodder for debate about where the court may go next on guns.

It is precisely this seeming tension within the Supreme Court — plus the political fallout from Scalia’s vacancy and all the work that other courts are doing to make some sense of the Second Amendment — that indicates why the justices probably won’t pull the trigger on the next big gun rights case soon.

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Don’t Bank On The Supreme Court To Clarify The Second …

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Why It’s Time to Repeal the Second Amendment

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Jun 172016
 

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass shooting, now is the time to acknowledge a profound but obvious truth the Second Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the weapons of today that are easily accessible are vastly different than anything that existed in 1791. When the Second Amendment was written, the Founders didn’t have to weigh the risks of one man killing 49and injuring 53 all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.

Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned downby someone wielding a weapon that can easily kill you and countless others.

The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered. It has for too long, and we must now say no more.

Finally, if we take the gun-rights lobby at their word, the Second Amendment is a suicide pact. As they say over and over, the only way to stop a bad guy with a gun is a good guy with a gun. In other words, please the gun manufacturers by arming even the vast majority of Americans who do not own a gun.

Just think of what would have happened in the Orlando night-club Saturday night if there had been many others armed. In a crowded, dark, loud dance club, after the shooter began firing, imagine if others took out their guns and started firing back. Yes, maybe they would have killed the shooter, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale shootout without anyone knowing who was the good guy with a gun, who was the bad guy with a gun, and who was just caught in the middle? The death toll could have been much higher if more people were armed.

The gun-rights lobby’s mantra that more people need guns will lead to an obvious result more people will be killed. We’d be walking down a road in which blood baths are a common occurrence, all because the Second Amendment allows them to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at the NRA, an organization that is nothing more than the political wing of the country’s gun manufacturers, and say enough is enough.

The Second Amendment must be repealed, and it is the essence of American democracy to say so.

Watch four pro-gun arguments we’re sick of hearing.

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Why It’s Time to Repeal the Second Amendment

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The Patriot Post Shop – 2A – Second Amendment

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Jun 072016
 

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Hillary Clinton wavers on Second Amendment right to bear arms …

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Jun 052016
 

Hillary Clinton declined to say Sunday whether she believes in a constitutional right to bear arms, possibly opening the door to a fresh round of attacks from Donald Trump, who has already accused the likely Democratic presidential nominee of wanting to “abolish” the Second Amendment.

In an interview on ABC’s “This Week,” Clinton deflected twice when she was asked whether she agrees with the Supreme Court’s interpretation of the Second Amendment. The court ruled in 2008 that the Constitution affords private citizens the right to keep firearms in their homes and that such possession need not be connected to military service.

The wording of the Second Amendment has long made the extent of gun-ownership rights a point of contention.

“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.”

Questioned by George Stephanopoulos about her view of the amendment, Clinton talked about a “nuanced reading” and emphasized her belief in the rights of local, state and federal governments to regulate gun ownership. Stephanopoulos, formerly a top aide to President Bill Clinton, wasn’t satisfied by the response.

“That’s not what I asked,” he replied.

Clinton then discussed the right to own a gun as a hypothetical. “If it is a constitutional right,” she began her next answer, “then it like every other constitutional right is subject to reasonable regulations.”

Here’s the full exchange:

STEPHANOPOULOS: Let’s talk about the Second Amendment. As you know, Donald Trump has also been out on the stump talking about the Second Amendment and saying you want to abolish the Second Amendment. I know you reject that. But I want to ask you a specific question: Do you believe that an individual’s right to bear arms is a constitutional right that it’s not linked to service in a militia?

CLINTON: I think that for most of our history there was a nuanced reading of the Second Amendment until the decision by the late Justice [Antonin] Scalia. And there was no argument until then that localities and states and the federal government had a right as we do with every amendment to impose reasonable regulations. So I believe we can have common-sense gun-safety measures consistent with the Second Amendment. And, in fact, what I have proposed is supported by 90 percent of the American people and more than 75 percent of responsible gun owners. So that is exactly what I think is constitutionally permissible and, once again, you have Donald Trump just making outright fabrications, accusing me of something that is absolutely untrue. But I’m going to continue to speak out for comprehensive background checks; closing the gun-show loophole; closing the online loophole; closing the so-called Charleston loophole;reversing the bill that Senator[Bernie] Sanders voted for and I voted against, giving immunity from liability to gun makers and sellers. I think all of that can and should be done, and it is, in my view, consistent with the Constitution.

STEPHANOPOULOS: And, and the Heller decision also says there can be some restrictions. But that’s not what I asked. I said, “Do you believe their conclusion that the right to bear arms is a constitutional right?”

CLINTON: If it is a constitutional right, then it like every other constitutional right is subject to reasonable regulations. And what people have done with that decision is to take it as far as they possibly can and reject what has been our history from the very beginning of the republic, where some of the earliest laws that were passed were about firearms. So I think it’s important to recognize that reasonable people can say, as I do, responsible gun owners have a right. I have no objection to that. But the rest of the American public has a right to require certain kinds of regulatory, responsible actions to protect everyone else.

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Hillary Clinton wavers on Second Amendment right to bear arms …

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Politics & 2nd Amendment Archives – Guns.com

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May 312016
 

Saying she hopes to continue to have an important conversation about reducing gun deaths in America, Couric took the rap Monday for a controversial pause in her Under the Gun documentary.

Last Julys high profile murder of Kathryn Steinle as she was walking along San Franciscos iconic Pier 14 with a gun stolen from a federal agent has wound up in court.

Cars for Freedom is a new fundraising project by the NRA Foundation, the fundraising arm of the national organization.

Libertarian party candidate Gary Johnson has been gaining media attention as a possible third party contender in the 2016 presidential election.

For the report, Judicial Watch cross referenced details with published news reports and was able to deduce incidents in which Fast and Furious guns were likely used.

Lawmakers in both the House and the Senate proposed making June 2 a day of remembrance for victims of gun violence, an event largely propagated by gun control groups.

During the legislative process to achieve open carry protections under the law in the Lone Star State, some forecast gun fights in the street. About that.

At least two national petitions have begun this week, accompanied by op-ed pieces, seeking the ouster of a Yahoo news personality over a controversial anti-gun film.

Second Amendment advocates are taking California officials into federal court arguing an obscure law preventing the use of videos taken during lawmaker debate violates the First Amendment.

Gov. John Bel Edwards made Louisiana the first state in the nation to adopt legislation making attacks on police, firefighters and emergency medical personnel a hate crime.

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Politics & 2nd Amendment Archives – Guns.com

Law Center to Prevent Gun Violence Second Amendment Rights

 Second Amendment  Comments Off on Law Center to Prevent Gun Violence Second Amendment Rights
May 192016
 

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. The Second Amendment to the U.S. Constitution

Does the Second Amendment prevent effective gun regulations? What is the right to bear arms? Second Amendment litigation has become a critical battleground since the U.S. Supreme Court held, in District of Columbia v. Heller, that the Amendment guarantees an individual right to possess a firearm in the home for self-defense. This decision created a radical shift in the meaning of the Second Amendment, but it doesnt prevent smart gun regulations. In fact, since Heller, courts nationwide have found a wide variety of firearms laws constitutional because they can help prevent gun deaths, injuries, and crimes in communities across the country.

The Law Center not only tracks the extensive Second Amendment litigation currently happening nationwide, but also analyzes the trends, to bring you the latest developments in the courts.

See more recent developments in court >>

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Second Amendment – lawbrain.com

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May 192016
 

The Second Amendment of the U.S. Constitution protects the right to keep and bear arms.

The Second Amendment, a provision of the U.S. Constitution, was ratified on December 15, 1791, forming what is known as the Bill of Rights. The Second Amendment to the U.S. Constitution[1] reads:

The subject matter and unusual phrasing of this amendment led to much controversy and analysis, especially in the last half of the twentieth century. Nevertheless, the meaning and scope of the amendment have long been decided by the Supreme Court.

Firearms played an important part in the colonization of America. In the seventeenth and eighteenth centuries, European colonists relied heavily on firearms to take land away from Native Americans and repel attacks by Native Americans and Europeans. Around the time of the Revolutionary War, male citizens were required to own firearms for fighting against the British forces. Firearms were also used in hunting.

In June 1776, one month before the signing of the Declaration of Independence, Virginia became the first colony to adopt a state constitution. In this document, the state of Virginia pronounced that “a well regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.” After the colonies declared their independence from England, other states began to include the right to bear arms in their constitution. Pennsylvania, for example, declared that

The wording of clauses about bearing arms in late-eighteenth-century state constitutions varied. Some states asserted that bearing arms was a “right” of the people, whereas others called it a “duty” of every able-bodied man in the defense of society.

Pennsylvania was not alone in its express discouragement of a standing (professional) army. Many of the Framers of the U.S. Constitution rejected standing armies, preferring instead the model of a citizen army, equipped with weapons and prepared for defense. According to Framers such as Elbridge Gerry of Massachusetts and George Mason of Virginia a standing army was susceptible to tyrannical use by a power-hungry government.

At the first session of Congress in March 1789, the Second Amendment was submitted as a counterweight to the federal powers of Congress and the president. According to constitutional theorists, the Framers who feared a central government extracted the amendment as a compromise from those in favor of centralized authority over the states. The Revolutionary War had, after all, been fought in large part by a citizen army against the standing armies of England.

The precise wording of the amendment was changed two times before the U.S. Senate finally cast it in its present form. As with many of the amendments, the exact wording proved critical to its interpretation.

In 1791 a majority of states ratified the Bill of Rights, which included the Second Amendment. In its final form, the amendment presented a challenge to interpreters. It was the only amendment with an opening clause that appeared to state its purpose. The amendment even had defective punctuation; the comma before shall seemed grammatically unnecessary.

Legal scholars do not agree about this comma. Some have argued that it was intentional and that it was intended to make militia the subject of the sentence. According to these theorists, the operative words of the amendment are “[a] well regulated Militia shall not be infringed.” Others have argued that the comma was a mistake, and that the operative words of the sentence are “the right of the people to bear arms shall not be infringed.” Under this reading, the first part of the sentence is the rationale for the absolute, personal right of the people to own firearms. Indeed, the historical backdrophighlighted by a general disdain for professional armieswould seem to support this theory.

Some observers argue further that the Second Amendment grants the right of insurrection. According to these theorists, the Second Amendment was designed to allow citizens to rebel against the government. Thomas Jefferson is quoted as saying that “a little rebellion every now and then is a good thing.”

Prior to the courts ruling in Heller v. District of Columbia[2], 128 S. Ct. 2783 (2008)(see infra), the Supreme Court had made the ultimate determination of the Constitution’s meaning, and it defined the amendment as simply granting to the states the right to maintain a militia separate from federally controlled militias. This interpretation first came in United States v. Cruikshank,[3] 92 U.S. 542, 23 L. Ed. 588 (1875). In Cruikshank, approximately one hundred persons were tried jointly in a Louisiana federal court with felonies in connection with an April 13, 1873, assault on two AfricanAmerican men. One of the criminal counts charged that the mob intended to hinder the right of the two men to bear arms. The defendants were convicted by a jury, but the circuit court arrested the judgment, effectively overturning the verdict. In affirming that decision, the Supreme Court declared that “the second amendment means no more than that [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government.”

In Presser v. Illinois,[4] 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886), Herman Presser was charged in Illinois state court with parading and drilling an unauthorized militia in the streets of Chicago in December 1879, in violation of certain sections of the Illinois Military Code. One of the sections in question prohibited the organization, drilling, operation, and parading of militias other than U.S. troops or the regular organized volunteer militia of the state. Presser was tried by the judge, convicted, and ordered to pay a fine of $10.

On appeal to the U.S. Supreme Court, Presser argued, in part, that the charges violated his Second Amendment right to bear arms. The Court disagreed and upheld Presser’s conviction. The Court cited Cruikshank for the proposition that the Second Amendment means only that the federal government may not infringe on the right of states to form their own militias. This meant that the Illinois state law forbidding citizen militias was not unconstitutional. However, in its opinion, the Court in Presser delivered a reading of the Second Amendment that seemed to suggest an absolute right of persons to bear arms: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States,” and “states cannot prohibit the people from keeping and bearing arms.”

Despite this generous language, the Court refused to incorporate the Second Amendment into the Fourteenth Amendment. Under the first section of the Fourteenth Amendment, passed in 1868, states may not abridge the privileges and immunities of citizens of the United States. The privileges and immunities of citizens are listed in the Bill of Rights, of which the Second Amendment is part. Presser had argued that states may not, by virtue of the Fourteenth Amendment, abridge the right to bear arms. The Court refused to accept the argument that the right to bear arms is a personal right of the people. According to the Court, “The right to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship.”

The Presser opinion is best understood in its historical context. The Northern states and the federal government had just fought the Civil War against Southern militias unauthorized by the federal government. After this ordeal, the Supreme Court was in no mood to accept an expansive right to bear arms. At the same time, the Court was sensitive to the subject of federal encroachment on states’ rights.

Several decades later, the Supreme Court ignored the contradictory language in Presser and cemented a limited reading of the Second Amendment. In United States v. Miller,[5] 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), defendants Jack Miller and Frank Layton were charged in federal court with unlawful transportation of firearms in violation of certain sections of the National Firearms Act of June 26, 1934 (ch. 757, 48 Stat. 12361240 [26 U.S.C.A. 1132 et seq.]). Specifically, Miller and Layton had transported shotguns with barrels less than 18 inches long, without the registration required under the act.

The district court dismissed the indictment, holding that the act violated the Second Amendment. The United States appealed. The Supreme Court reversed the decision and sent the case back to the trial court. The Supreme Court stated that the Second Amendment was fashioned “to assure the continuation and render possible the effectiveness of militia forces.”

The Miller opinion confirmed the restrictive language of Presser and solidified a narrow reading of the Second Amendment. According to the Court in Miller, the Second Amendment does not guarantee the right to own a firearm unless the possession or use of the firearm has “a reasonable relationship to the preservation or efficiency of a well regulated militia.”

However, in Heller v. District of Columbia, 128 S. Ct. 2783 (2008), the Supreme Court reviewed a case where D.C. residents challenged an ordinace which banned the possession of handguns. The Supreme Court held that the constitution protects the right of individuals to possess a firearm.

The legislative measures that inspire most Second Amendment discussions are gun control laws. Since the mid-nineteenth century, state legislatures have been passing laws that infringe a perceived right to bear arms. Congress has also asserted the power to regulate firearms. No law regulating firearms has ever been struck down by the Supreme Court as a violation of the Second Amendment.

Historically, the academic community has largely ignored the Second Amendment. However, gun control laws have turned many laypersons into scholars of the Second Amendment’s history. The arguments for a broader interpretation are many and varied. Most center on the original intent of the Framers. Some emphasize that the Second Amendment should be interpreted as granting an unconditional personal right to bear arms for defensive and sporting purposes. Others adhere to an insurrection theory, under which the Second Amendment not only grants the personal right to bear arms, it gives citizens the right to rebel against a government perceived as tyrannical.

In response to these arguments, supporters of the prevailing Second Amendment interpretation maintain that any right to bear arms should be secondary to concerns for public safety. They also point out that other provisions in the Constitution grant power to Congress to quell insurrections, thus contradicting the insurrection theory. Lastly, they argue that the Constitution should be interpreted in accordance with a changing society and that the destructive capability of semiautomatic and automatic firearms was not envisioned by the Framers.

In response to the last argument, critics maintain that because such firearms exist, it should be legal to use them against violent criminals who are themselves wielding such weapons.

In the 2000s, federal courts continue to revisit the scope and detail of the Second Amendment right to bear arms. In particular federal courts have recast much of the debate as one over whether the Second Amendment protects a “collective” right or an “individual” right to bear arms. If the Second Amendment protects only a collective right, then only states would have the power to bring a legal action to enforce it and only for the purpose of maintaining a “well-regulated militia.” If the Second Amendment protects only an individual right to bear arms, then only individuals could bring suit to challenge gun-control laws that curb their liberty to buy, sell, own, or possess firearms and other guns.

Not surprisingly, courts are conflicted over how to resolve this debate. In United States v. Emerson,[6][7] 270 F.3d 203 (5th Cir. 2001), the U.S. Court of Appeals for the Fifth Circuit found that the original intent of the Founding Fathers supported an individual-rights interpretation of the Second Amendment, while the Ninth Circuit came to the opposite conclusion in Nordyke v. King,[8] 319 F.3d 1185 (9th Cir. 2003). Although no court has concluded that the original intent underlying the Second Amendment supports a claim for both an individual- and a collective rights based interpretation of the right to bear arms, the compelling historical arguments marshaled on both sides of the debate would suggest that another court faced with the same debate may reach such a conclusion.

Becker, Edward R. 1997. “The Second Amendment and Other Federal Constitutional Rights of the Private Militia.” Montana Law Review 58 (winter).

Bogus, Carl T., ed. 2000. The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. New York: New Press.

Dolan, Edward F., and Margaret M. Scariano. 1994. Guns in the United States. New York: Watts.

Dunlap, Charles J., Jr. 1995. “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment.” Tennessee Law Review 62 (spring).

Hanson, Freya Ottem. 1998. The Second Amendment: The Right to Own Guns. Springfield, N.J.: Enslow.

Hook, Donald D. 1992. Gun Control: The Continuing Debate. Washington, D.C.: Second Amendment Foundation.

Hoppin, Jason. 2003. “Ninth Circuit Upholds Controversial Ruling on Second Amendment.” Legal Intelligencer (May 8).

. 2003. “Second Amendment Fight Steals Show in Gun Ban Case: Panel Enters Fray over Individual Rights.” San Francisco Recorder (February 19).

McAffee, Thomas B. 1997. “Constitutional Limits on Regulating Private Militia Groups.” Montana Law Review 58 (winter).

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Defending the Second Amendment – Kasich for America

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Apr 092016
 

Experience and Results Like No Other

Gov. John R. Kasich continues to be a strong supporter of the right to bear arms and, as governor, has signed every pro-2nd amendment bill that has crossed his desk to defend this basic, constitutional right. John Kasich is a gun-owner himself, and in his 2014 reelection was endorsed by the National Rifle Association for his support of the Second Amendment as an inviolate part of our Constitution.

Removing Burdensome Restrictions for Law-Abiding Concealed Carry Licensees: John Kasich enacted legislation protecting Ohios concealed carry laws, including protecting the privacy of permit holdersandallowing for reciprocity licenses with other stateswhere permit holders can carry their firearms.

Opposing Barack Obamas Gun Control Efforts: John Kasich opposes President Obamas gun control executive orders. The Second Amendment is too important and Obamas hostility to it is too well known for him to be allowed to go around Congress and undermine the Second Amendment. His efforts to expand the federal governments interference with Americans Right to Keep and Bear Arms are wrong and the governor opposes them.

Upholding Ohios Outdoors Traditions: In addition to having a $3.6 billion annual economic impact in Ohio, hunting and fishing are parts of Ohios long tradition of enjoying our natural places. John Kasich upheld this heritage by enacting legislation that removes restrictions on licensing requirements for hunters and by creating new policies to expand hunting rights in Ohio.

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Defending the Second Amendment – Kasich for America

Obamas Supreme Court Nominee Revealed

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Mar 192016
 

UPDATE 11:43 a.m. ET: President Barack Obama nominated Judge Merrick Garland, citing bipartisan respect in the past, to fill the vacancy on the U.S. Supreme Court left by the death to Justice Antonin Scalia.

Garland, 63, is the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, where he has served since 1997.

I said I would take this process seriously and I did. I chose a serious man and an exemplary judge, Obama said standing next to Garland in the Rose Garden Wednesday morning. To find someone who just about everyone not only respects, but genuinely likesthat is rare.

Judge Merrick B. Garland speaks after being nominated to the US Supreme Court as U.S. President Barack Obama looks on, in the Rose Garden at the White House, March 16, 2016 in Washington, DC. Garland currently serves as the chief judge on the United States Court of Appeals for the District of Columbia Circuit, and if confirmed by the US Senate, would replace Antonin Scalia who died suddenly last month. (Chip Somodevilla/Getty Images)

Senate Republicans have vowed to block any nominee Obama puts forward, preferring to let voters choose the kind of justice who will replace Scalia through the 2016 presidential elections.

Garland comes in with a mixed record and will likely face scrutiny from Republicans about his stance on the Second Amendment.

As a Justice Department attorney in the 1990s, he assisted in the high profile prosecutions of Oklahoma City bomber Timothy McVeigh and Unabomber Ted Kaczynski.

President Bill Clinton named Garland to the D.C. Circuit Court in 1997 and he was confirmed by a bipartisan vote in the Senate.

Fidelity to the constitution and the law has been the cornerstone of my professional life and it is the hallmark of the kind of judge I have tried to be for the past 18 years, Garland said Tuesday in the Rose Garden. If the Senate sees fit to confirm me to the position for which I have been nominated today, I promise to continue on that course. Mr. president, its a great privilege to be nominated by a fellow Chicagoan.

In the D.C. vs. Heller gun case, which eventually made it to the Supreme Court, a three-judge panel of the D.C. Circuit struck down most of the Washington, D.C., handgun ban. However, Garland joined Judge David Tatel in voting to have the full court reconsider the decision. Garland and Tatel were on the losing side when the Supreme Court recognized the individual right to bear arms in the Heller case and struck down the districts ban.

There is no freedom more fundamental than the right to defend ones life and family, said Erich Pratt, executive director of the Gun Owners of America. The Heller and McDonald decisions are hanging by a thread, as both were decided by 5-4 majorities. If Garland were confirmed, we can expect to see more gun registration, more gun bans, more limitations on ammunition, and all of it would be approved by the Supreme Court.

In a National Review piece, Carrie Severino, chief counsel for the Judicial Crisis Network, also wrote about Garland voting to uphold an executive action by President Clinton to establish what some considered a de facto gun registration requirement.

But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalias most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms. Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in ones own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the [t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights in a previous case. Had Garland and Tatel won that vote, theres a good chance that the Supreme Court wouldnt have had a chance to protect the individual right to bear arms for several more years

Garland thought all of these regulations were legal, which tells us two things. First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that hes willing to uphold executive actions that violate the rights of gun owners. Thats not so moderate, is it?

Garland does have a somewhat centrist record, siding with the Bush administration in a key terror case. In 2003, he joined an opinion on the D.C. Circuit prohibiting Guantanamo Bay prisoners from challenging their detention from appealing in civilian courts. The Supreme Court, in 2008, overturned this ruling in the case of Rasul v. Bush.

Senate Majority Leader Mitch McConnell (R-Ky.) said the choice should be up to the voters, and without speaking no ill of Garland, said: This is not about the person. It is about the principle.

Obama said he is doing his job in nominating a justice and called on the Senate and insisted that Republicans in the Senate give Garland a hearing and a vote.

Presidents dont stop working in the final year of their term, Obama said. Neither should a Senator.

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Obamas Supreme Court Nominee Revealed

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Parsing the Second Amendment – CBS News

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Mar 192016
 

Any discussion of the right to bear arms has to take note of the Second Amendment. Here’s Anthony Mason:

At the heart of the debate over guns in America is a single, inscrutable sentence: The Second Amendment of the Bill of Rights, whose wording is unusual.

Simon & Schuster

“The Second Amendment says, ‘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.’ What does that mean?”

The most-disputed clause in the Constitution is the phrase about militias, which were a great concern when the Bill of Rights was written in 1792.

“At the Constitutional Convention in Philadelphia, there was a very big controversy about how to allocate military power,” said Nelson Lund, professor of constitutional law at George Mason University. He says the states feared the new government would try to disarm the 13 state militias, which required every white male over 16 to own a musket.

“The anti-Federalists were very worried that the states would be deprived of their power to resist federal tyranny,” Lund said.

“The militia, sir, is our ultimate safety,” Patrick Henry argued. “We can have no security without it.”

While guns were commonplace then, so were gun regulations. New York and Boston prohibited the firing of guns within city limits.

And in the notes for the Constitutional Convention, Waldman says, “There’s literally not a word about it protecting an individual right for gun ownership for self-protection, hunting, or any of the other things we think about now.”

“There’s one side that believes that this amendment refers specifically and only to militias,” said Mason.

“Well, I know people say that, but it just can’t be true,” replied Lund. “If you look at what the words say, it says ‘The right of the people to keep and bear arms.’ It does not say, ‘The right of the states’ or ‘The right of the militias.’ It says ‘the right of the people.'”

The debate over the Second Amendment came to a head at the Supreme Court in 2008, in a case filed over the Capital’s gun laws, called District of Columbia v. Heller. In a 5-4 vote, the court affirmed an individual’s right to keep and bear arms, striking down D.C.’s ban on handguns in the home.

‘The inherent right of self-defense,” Justice Antonin Scalia wrote in the majority opinion, “has been central to the Second Amendment right.”

But, Scalia added, “The right … is not unlimited,” also leaving room for gun regulation.

Lund said, “It is absolutely a continuing grey area.”

Another grey area is how the court might rule on future Second Amendment issues after the sudden death of Justice Scalia in February.

“So, you know, a lot depends on who replaces Justice Scalia,” said Lund.

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Second Amendment to the United States Constitution – Simple …

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Feb 182016
 

Created on December 15, 1791, the Second Amendment in the United States Constitution is the part of the United States Bill of Rights that establishes the right of citizens to possess firearms for lawful purposes.[a] It says, “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.”[2]

When America was being colonized by European countries, firearms were very important to colonists.[3] When Europeans came here they brought with them the idea of land ownership by an individual.[4] They received this right from their king through land grants.[4] This was completely foreign to Native Americans who considered a particular territory belonged to the tribe.[4] Colonists defended their claims against Native Americans and other Europeans whose king may have granted them the same lands.[3] They also needed firearms for hunting. In many towns and villages, men were required to own firearms for the defense of the community. Most colonists coming to America in the 17th century had no experience as soldiers.[5] The British kept few soldiers in the colonies and colonists soon found they needed to establish militias.[5]

Colonies had militia laws that required every able-bodied man to be available for militia duty and to provide his own arms.[5] In 1774 and 1775, the British government, which now had a larger presence, attempted to disarm American colonists. This caused the formation of private militias independent of any control by the governors appointed by the British government.[5] The Minutemen who opposed the British Army at the Battles of Lexington and Concord were an independent militia.[5] After the American Revolutionary War, the framers of the Constitution, like most Americans of the time, distrusted standing armies and trusted militias.[5] After the Revolutionary war, state militias were trusted to defend the country. The Articles of Confederation, the new nation’s first constitution, called for each state to maintain a well-armed militia. Congress could only form a standing army by approval of nine of the thirteen states. This was one of the weaknesses that led to the Constitutional Convention of 1787 and a new constitution. This gave Congress the power to call up the militias to defend the country against any foreign power. In the 18th century, the word “army” meant mercenaries.[5] Americans distrusted standing armies and were afraid they could be used to take over the country.[6]Oliver Cromwell and his military dictatorship of England was still well-remembered.[6]

Virginia was one of the first colonies to adopt a state constitution. They included the words: “a well regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State.”[3] Other states followed with similar wording in their own constitutions. Pennsylvania declared: 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.”[3] In 1781 the Continental Congress approved the Articles of Confederation. This recognized the thirteen original states had the power to govern themselves. They acted collectively to have a congress, but did not provide any money to run it. There was no president and no court system. This confederation of states proved to be a very poor form of central government.

The Constitutional Convention met in Philadelphia, Pennsylvania from May 25 to September 17, 1787.[7] The purpose of the Convention was to revise the Articles of Confederation. But it became clear that the intention many of its members, including James Madison and Alexander Hamilton, was to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. They eventually agreed on agreed on Madison’s Virginia Plan and began to make changes. The result was the Constitution of the United States and the present form of government.[7]

The constitution debate at Philadelphia caused two groups to form, the Federalists and the Anti-federalists. The federalists wanted a strong central government. The anti-federalists wanted the state governments to have the authority. The vote on the new Constitution was passed on a promise by federalists to support a Bill of Rights to be added to the Constitution.[8] Originally 12 amendments were considered. But in their final form, 10 amendments to the Constitution were agreed on. The Bill of Rights, as the first 10 amendments came to be called, originally applied to the national government rather than to states.[8] Many states already had their own Bill of Rights.[8] The Bill of Rights were ratified and went into effect in 1791.

The second amendment was a result of several proposals being combined together and simplified into just 27 words.[9] This simplification has caused many debates over gun ownership and individual rights. Historians, judges and others have repeatedly looked for the intended meaning by the 18th century writers of this amendment. [9] Different interpretations of the Second Amendment still cause public debates concerning firearm regulations and gun control.[9]

The case of District of Columbia v. Heller brought before the Supreme Court was based on the United States Court of Appeals for the District of Columbia Circuit decision written by Judge Laurence H. Silberman.[10] The decision made the ban on guns by the District of Columbia invalid.[10] The decision was based on the second comma (after the word “state”) as proof that the Second Amendment allows individuals the right to carry a gun.[10] This is in addition to the right of states to maintain militias.[10]

The Second Amendment ratified by the States and approved by the Secretary of State, Thomas Jefferson, said:

The version passed by Congress and signed by President George Washington (but never ratified by the States) said:

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Second Amendment to the United States Constitution – Simple …

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Second Amendment Sports – Bakersfield, CA – Yelp

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Jan 102016
 

Specialties

Second Amendment Sports specializes in serving customers the entire package of what they need to feel prepared for going out into the field. We don’t just merely SELL our wares. We like to evaluate, educate, and make helpful suggestions.

Our clerks will listen to what you need, and present solutions that will fulfill your specific needs.

We offer self defense training at every level and for different purposes. One of our goals in training is to mentally and physically prepare our students to find the most appropriate means to protect themselves. Our Training Division holds non-firearm courses and firearm courses of all levels.

Second Amendment Sports also takes care of customers AFTER the sale. We offer a lifetime warranty for brand new firearms, mount and boresight services, sight installations, offsite gunsmithing, archery pro shop services, and reel spooling.

Established in 1993.

Matt and Dana Janes started selling ammo from inside his father’s storage container at David Janes Company. “We started with six cases of ammunition, re-invested it, and never looked back,” Matt says.

..and he didn’t look back. His business grew from cases of ammo in a corner to adding some long guns in a floor rack, then taking up an entire wall of the storage container to display all his guns. Matt and Dana logged thousands of hours of work into their business and sold guns at gun shows to get the business name out to the Kern County crowd.

In 1999, Matt left full time employment with his father, David Janes, to open up Second Amendment’s own storefront across the street. In 2003, he doubled the retail floorspace to sell more goodies. In 2007, he opened up a second location in Tucson, Arizona.

Matt and Dana show no signs of slowing down! They divide their time between stores, in order to ensure that they are still providing customers with the best experience possible!

Matt Janes involves himself in the entire outdoor sports industry. He has hunted upland game and big game in many western states with firearms and bow. He has fished the entire Pacific Coast. He is a Martial Arms graduate, and has owned almost every firearm imaginable! Matt is an Eagle Scout. He also has extensive backcountry experience in the entire Upper Kern Plateau. In 2005, he was honored with the title of “2005 Kern County Sportsman of the Year.”

“Raised with basic family values and many early outdoor opportunities, I stayed close to my desires while honing my business skills with my father/mentor. Then I took those family business and relationship skills and applied them to the outdoor industry. Continually surrounding myself with good people and loving family has allowed me to find a creative outlet at Second Amendment Sports. I appreciate all my association with you over time, and I hope to continue to share this passion with you!”

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Second Amendment Sports – Bakersfield, CA – Yelp

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Second Amendment – Conservapedia

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Oct 192015
 

See also gun control.

The Second Amendment to the United States Constitution states:[1]

For several decades, the lower federal courts had interpreted the Second Amendment as protecting merely a collective right of state militias.[2] However, the U.S Supreme Court has always called it an individual right. The 2008 Supreme Court decision of District of Columbia v. Heller ruled 5-4 that the Second Amendment protects an individual right.

In 1786, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays’ Rebellion.

In 1787, to address these weaknesses, the Constitutional Convention was held with the idea of amending the Articles. When the convention ended with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).

Among their objections to the Constitution, anti-Federalists feared a standing army that could eventually endanger democracy and civil liberties. Although the anti-Federalists were unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they insured that a Bill of Rights would be made, which would provide constitutional guarantees against taking away certain rights.

One of those rights was the right to bear arms. This was intended to prevent the Federal Government from taking away the ability of the states to raise an army and defend itself and arguably to prevent them from taking away from individuals the ability to bear arms.

The meaning of this amendment is controversial with respect to gun control.

The National Rifle Association, which supports gun rights, has a stone plaque in front of its headquarters bearing the words “The right of the people to keep and bear arms shall not be infringed.” The slogan means that individual citizens have the right to own and use guns.

American law has always said that the militia includes ordinary private citizens, and gun rights advocates say that the amendment means individuals have the right to own and use guns. Gun control advocates began in the late 20th century to say it means only that there is only some sort of collective or state-controlled right.

Supreme Court opinions have all been consistent with the individual rights interpretation of the Second Amendment, but the lower court opinions are mixed.

As of 2007, people argue about the meaning of the Second Amendment, but there is no definitive answer. The latest ruling is Parker v District of Columbia, in which the DC Circuit court of appeals ruled on March 9, 2007 that the DC gun ban violated individual rights under the Second Amendment.

The One Comma vs. The Three Comma Debate

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.””’

Quoted from: http://www.freerepublic.com/forum/a39388c210c1b.htm

Down to the Last Second (Amendment)

Participants in the various debates on firearms, crime, and constitutional law may have noticed that the Second Amendment is often quoted differently by those involved. The two main variations differ in punctuation- specifically, in the number of commas used to separate those twenty-seven words. But which is the correct one? The answer to this question must be found in official records from the early days of the republic. Therefore, a look into the progression of this declaratory and restrictive clause from its inception to its final form is in order.

Before beginning, one must note that common nouns, like “state” and “people,” were often capitalized in official and unofficial documents of the era. Also, an obsolete formation of the letter s used to indicate the long s sound was in common usage. The long ‘s’ is subject to confusion with the lower case ‘f’ ,therefore, Congress” is sometimes spelled as “Congrefs,” as is the case in the parchment copy of the Bill of Rights displayed by the National Archives. The quotations listed here are accurate. With the exception of the omission of quotations marks, versions of what is now known as the Second Amendment in boldface appear with the exact spelling, capitalization, and punctuation as the cited originals.

During ratification debates on the Constitution in the state conventions, several states proposed amendments to that charter. Anti-Federalist opposition to ratification was particularly strong in the key states of New York and Virginia, and one of their main grievances was that the Constitution lacked a declaration of rights. During the ratification process, Federalist James Madison became a champion of such a declaration, and so it fell to him, as a member of the 1st Congress, to write one. On June 8, 1789, Madison introduced his declaration of rights on the floor of the House. One of its articles read:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.1

On July 21, John Vining of Delaware was appointed to chair a select committee of eleven to review, and make a report on, the subject of amendments to the Constitution. Each committeeman represented one of the eleven states (Rhode Island and North Carolina had not ratified the Constitution at that time), with James Madison representing Virginia. Unfortunately, no record of the committee’s proceedings is known to exist. Seven days later, Vining duly issued the report, one of the amendments reading:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. 2

In debates on the House floor, some congressmen, notably Elbridge Gerry of Massachusetts and Thomas Scott of Pennsylvania, objected to the conscientious objector clause in the fifth article. They expressed concerns that a future Congress might declare the people religiously scrupulous in a bid to disarm them, and that such persons could not be called up for military duty. However, motions to strike the clause were not carried. On August 21, the House enumerated the Amendments as modified, with the fifth article listed as follows:

5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. 3

Finally, on August 24, the House of Representatives passed its proposals for amendments to the Constitution and sent them to the Senate for their consideration. The next day, the Senate entered the document into their official journal. The Senate Journal shows Article the Fifth as:

Art. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. 4

On September 4, the Senate debated the amendments proposed by the House, and the conscientious objector clause was quickly stricken. Sadly, these debates were held in secret, so records of them do not exist. The Senators agreed to accept Article the Fifth in this form:

…a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall net be infringed. 5

In further debates on September 9, the Senate agreed to strike the words, “the best,” and replace them with, “necessary to the.” Since the third and fourth articles had been combined, the Senators also agreed to rename the amendment as Article the Fourth. The Senate Journal that day carried the article without the word, “best,” but also without the replacements, “necessary to.” Note that the extraneous commas have been omitted:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. 6

With two-thirds of the Senate concurring on the proposed amendments, they were sent back to the House for the Representatives’ perusal. On September 21, the House notified the Senate that it agreed to some of their amendments, but not all of them. However, they agreed to Article the Fourth in its entirety:

Resolved, That this House doth agree to the second, fourth, eighth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-sixth amendments… 7

By September 25, the Congress had resolved all differences pertaining to the proposed amendments to the Constitution. On that day, a Clerk of the House, William Lambert, put what is now known as the Bill of Rights to parchment. Three days later, it was signed by the Speaker of the House, Frederick Augustus Muhlenberg, and the President of the Senate, Vice President John Adams. This parchment copy is held by the National Archives and Records Administration, and shows the following version of the fourth article:

Article the Fourth. 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. 8

The above version is used almost exclusively today, but aside from the parchment copy, the author was unable to find any other official documents from that era which carry the amendment with the extra commas. In fact, in the appendix of the Senate Journal, Article the Fourth is entered as reading:

Art. IV. 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.9

Also, the Annals of Congress, formally called The Debates and Proceedings in the Congress of the United States, show the proposed amendment as follows:

Article the Fourth. 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.10

Further, once two-thirds of both chambers of the Congress agreed to the proposed amendments, the House passed a resolve to request that the President send copies of them to the governors of the eleven states in the Union, and to those of Rhode Island and North Carolina. The Senate concurred on September 26, as recorded in their journal:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be requested to transmit to the executives of the United States, which have ratified the constitution copies of the amendments proposed by Congress, to be added thereto; and like copies to the executives of the states of Rhode Island and North Carolina.11

Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:

Article the Fourth, –A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed. 12

And so, the proposed amendments to the Constitution were sent to the states for ratification. When notifying the President that their legislatures or conventions had ratified some or all of the proposed amendments, some states attached certified copies of them. New York, Maryland, South Carolina, and Rhode Island notified the general government that they had ratified the fourth amendment in this form:

Article the Fourth. 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. 13

Articles the First and Second were not ratified by the required three-fourths of the states, but by December 15, 1791, the last ten articles were. These, of course, are now known as the Bill of Rights. Renumbering the amendments was required since the first two had not been ratified. The 1796 revision of The Federalist on the New Constitution reflects the change as such:

ARTICLE THE SECOND

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.14

This version is carried throughout the 19th Century, in such legal treatises as Joseph Story’s Commentaries on the Constitution of the United States (1833) and Thomas Cooley’s Principles of Constitutional Law (1898). It is also transcribed in this manner in the 1845 Statutes at Large, although the term “state” is capitalized in that text. The latter are the official source for acts of Congress.15,16, 17

This version still appears today, as is the case with the annotated version of the Constitution they sponsored on the Government Printing Office web site (1992, supplemented in 1996 and 1998). The Second Amendment is shown as reading:

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. 18

(The Senate-sponsored GPO site does carry a “literal print” of the amendments to the Constitution showing the Second Amendment with the additional commas. The punctuation and capitalization of the amendments transcribed there are the same as those found on the parchment copy displayed in the Rotunda of the National Archives.)19

Thus, the correct rendition of the Second Amendment carries but a single comma, after the word “state.” It was in this form that those twenty-seven words were written, agreed upon, passed, and ratified.

Why the Commas are Important

It is important to use the proper Second Amendment because it is clearly and flawlessly written in its original form. Also, the function of the words, “a well regulated militia being necessary to the security of a free state,” are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serve only to render the sentence grammatically incorrect and unnecessarily ambiguous. These points will be demonstrated later in the Second Amendment Series.

Footnotes to Comment section:

1. Amendments Offered in Congress by James Madison, June 8, 1789. The Constitution Society. http://www.constitution.org/bor/amd_jmad.htm, 16 January 2000.

2. Amendments Reported by the Select Committee. July 28, 1789. The Constitution Society. http://www.constitution.org/bor/amd_scom.htm, 16 January 2000.

3. U.S. House Journal. 1st Cong., 1st sess., 21 August 1789.

4. U.S. Senate Journal. 1st Cong., 1st sess., 25 August 1789.

5. U.S. Senate Journal, 1st Cong., 1st sess., 4 September 1789.

6. U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789.

7. U.S. House Journal. 1st Cong., 1st sess., 21 September 1789.

8. Bill of Rights. National Archives and Records Administration. http://www.nara.gov/exhall/charters/billrights/bill.jpg, 22 January 2000.

9. U.S. Senate Journal. 1st Cong., 1st sess., Appendix.

10. Annals of Congress, 1st Cong., 1st sess., Appendix

11. U.S. Senate Journal. 1st Cong. 1st sess., 26 September 1789.

12. A True Bill. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/billofrt.jpg, 27 January 2000.

13. U.S. House Journal, 1st Cong., 3rd sess., Appendix Note: Maryland and South Carolina capitalized the “m” in “Militia.”

14. The Federalist on the New Constitution, 1796. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/f16b1234.jpg, 17 February 2000.

15. Commentaries on the Constitution of the United States. The Constitution Society. http://www.constitution.org/js/js_344.htm, 18 February 2000.

16. Quotes from Constitutional Commentators. Gun Cite. http://www.guncite.com/gc2ndcom.html, 2 February 2000.

17. Statutes at Large 1845, 21.

18. Second Amendment–Bearing Arms. The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/amdt2.html, 18 February 2000.

19. Text of the Amendments (Literal Print). The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/conamt.html, 18 February 2000.

Liberals have made various efforts to subvert the Second Amendment by enacting unconstitutional gun laws which restrict the ability of individuals to protect themselves against the excesses of government. Examples include:

See also list of celebrities against Second Amendment

Bill of Rights: 1 – Freedom of speech, press, etc. 2 – Right to bear arms 3 – Quartering of soldiers 4 – Warrants 5 – Due process 6 – Right to a speedy trial 7 – Right by trial of a jury 8 – No cruel or unusual punishments 9 – Unenumerated rights 10 – Power to the people and states

11 – Immunity of states to foreign suits 12 – Revision of presidential election procedures 13 – Abolition of slavery 14 – Citizenship 15 – Racial suffrage 16 – Federal income tax 17 – Direct election to the United States Senate 18 – Prohibition of alcohol 19 – Women’s suffrage 20 – Terms of the presidency 21 – Repeal of Eighteenth Amendment 22 – Limits the president to two terms 23 – Electoral College 24 – Prohibition of poll taxes 25 – Presidential disabilities 26 – Voting age lowered to 18 27 – Variance of congressional compensation

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Second Amendment – Conservapedia

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Second Amendment | Fox News

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Oct 192015
 

Luby’s massacre survivor speaks out on gun control debate

Suzanna Hupp slams Hillary Clinton’s gun control plan on ‘The Kelly File’

Gun control advocates are launching a new regulatory push in California to impose first-in-the-nation instant background checks for ammunition sales, a move that comes as gun viole…

Alan Colmes vs: Larry Pratt on why he believes gun registration is the first step towards total confiscation of all guns

Texas professor is worried about students bringing guns to campus under new law; Daniel Hamermesh sounds off on ‘The Kelly File’

Pres. Obama’s visit to Oregon a week after shooting massacre not welcome by some Roseburg residents and the publisher of the Roseburg Beacon. ‘On the Record’ takes a closer look

Judge Napolitano’s Chambers: The Judge reminds the people what the 2nd Amendment means in 2015 and why Hillary Clinton should not convince anyone to not have guns

While the FBI continued to analyze the emails Hillary Clinton thought she deleted and her advisers pressed her to hire a Republican criminal defense attorney in Washington, a madma…

Starnes Exclusive: Franklin Graham condemns Obama’s reaction to the Oregon school shooting, defends Dr. Ben Carson’s controversial comments about the tragedy and discusses his fath…

Viewer tired of talking heads

Donald Trump goes ‘On the Record’ on his biggest disappointment with Pres. Obama, says Putin clearly has a ‘lack of respect for the president. Trump also sounds off on latest 2016 …

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Second Amendment | Fox News

Second Amendment – National Constitution Center

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Oct 122015
 

The Second Amendment

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nations military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nations armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated gunsblacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rollsgun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nations capital. A 54 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only the right of the people of each of the several States to maintain a well-regulated militia. They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 54 vote. Four Justices relied on judicial precedents under the Fourteenth Amendments Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of presumptively lawful regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in sensitive places such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons not typically possessed by law-abiding citizens for lawful purposes. Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much.

Not a Second Class Right: The Second Amendment Today by Nelson Lund

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

The Reasonable Right to Bear Arms by Adam Winkler

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulatedand regulated well. This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures.

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that reasonable gun lawsthose that dont completely deny access to guns by law-abiding peopleare constitutionally permissible. For 150 years, this was the settled law of the landuntil Heller.

Heller, however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendments ratification.

In the years since Heller, the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited.

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

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Repeal the Second Amendment – Baltimore Sun

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Oct 042015
 

In 2008, the Supreme Court of the United States decided in District of Columbia v. Heller that the Second Amendment to the U.S. Constitution protects a civilian’s right to keep a gun in his home. In 2010, the court decided in McDonald v. Chicago that the Due Process Clause of the Fourteenth Amendment limits the power of state and local governments to outlaw the possession of handguns by private citizens. The vote in each case was five-to-four not exactly a ringing endorsement of the court’s reasoning in either case. But for now, the law of the land with regard to easy access to guns is settled.

The Second Amendment is enthroned mistakenly, but as a matter of law as a fundamental dimension of individual freedom. The practical result is that we must live with carnage by firearms as a daily fact of American life.

Surely, the timid voices of reason and humanity whisper, there is some limit to the atrocities that Americans will tolerate. When Adam Lanza, with no prior criminal history nor treatment for mental illness, killed 26 people including 20 first-grade students at the Sandy Hook Elementary School in Newtown, Conn., on December 14, 2012, the nation was riveted and horrified. Something this unspeakable, this ghastly, this straight-out-of-hell, changed exactly nothing in federal law.

Then, in June of this year, a gunman killed nine churchgoers in Charleston, S.C. Two months later, a Virginia TV news crew was slaughtered on air, and the deed posted almost immediately to social media by the killer. And Thursday, a gunman killed at least 9 people and wounded others on the campus of Oregon’s Umpqua Community College.

What will it take to shock us out of our torpor? Another dead president? Not likely half the country will applaud it. How about a dozen people inspired by ISIS slipping simultaneously into the Mall of America and unveiling the assault weapons they have obtained in perfectly legal ways? I cannot imagine what level of gun violence will serve more to horrify than to entertain.

It is certainly a respectable idea to accept the Second Amendment and treat death by firearms as a public health issue. It is doomed to fail, however, because it isn’t the criminal or the psychotic who produces the murder, it’s the easy means to act out one’s fantasies that produces the criminal and the psychotic. Millions of guns, thousands of gun deaths.

Retired Justice John Paul Stevens, the leading dissenter in Heller and McDonald, has published a wise little book, “Six Amendments: How and Why We Should Change the Constitution.” He suggests five words be added to the Second Amendment so that it reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”

I say, let’s get rid of the Second Amendment altogether. Let the states and Congress regulate firearms as they see fit. Some states, most of them without big-city violence, will retain laws that allow citizens to carry concealed firearms. Gang-ridden Chicago will try again to crack down on guns. Congress will reconsider universal background checks and the prohibition of assault weapons.

As Justice Stevens informs us in his book, “legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.”

And we’ve all already seen enough harm.

Hal Riedl retired from the Maryland Division of Correction in 2010, and from the office of the state’s attorney for Baltimore City in December 2014. His email is halriedl@msn.com.

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Repeal the Second Amendment – Baltimore Sun

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The Second Amendment Is a Gun-Control Amendment

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Oct 032015
 

Participants consoling each other during a candlelight vigil for the nine people who were killed in a shooting at Umpqua Community College, in Roseburg, Oregon, on Thursday. The gunman also was killed. Credit photograph by Rich Pedroncelli/AP

The tragedy happensyesterday at a school in Oregon, and then as it will againexactly as predicted, and uniquely here. It hardly seems worth the energy to once again make the same essential point that the Presidenthis growing exasperation and disbelief moving, if not effective, as he serves as national mournerhas now made again: we know how to fix this. Gun control ends gun violence as surely an antibiotics end bacterial infections, as surely as vaccines end childhood measlesnot perfectly and in every case, but overwhelmingly and everywhere that its been taken seriously and tried at length. These lives can be saved. Kids continue to die en masse because one political party wont allow that to change, and the partywont allow it to change because of the irrational and often paranoid fixations that make the massacre of students and children an acceptable cost of fetishizing guns.

In the course of todays conversation, two issues may come up, treated in what is now called a trolling tonepretending to show concern but actually standing in the way of real argument. One is the issue of mental health and this particular killers apparent religious bigotry. Everyone crazy enough to pick up a gun and kill many people is crazy enough to have an ideology to attach to the act. The pointthe only pointis that, everywhere else, that person rants in isolation or on his keyboard; only in America do we cheerfully supply him with military-style weapons to express his rage. As the otherwise reliably Republican (but still Canadian-raised) David Frum wisely writes: Every mass shooter has his own hateful motive. They all use the same tool.

More standard, and seemingly more significant, is the claimoften made by those who say they recognize the tragedy of mass shootings and pretend, at least, that they would like to see gun sanity reign in Americathat the Second Amendment acts as a barrier to anything like the gun laws, passed after mass shootings, that have saved so many lives in Canada and Australia. Like it or not, according to this argument, the Constitution limits our ability to control the number and kinds of guns in private hands. Even the great Jim Jeffries, in his memorable standup on American madness, says, Why cant you change the Second Amendment? Its an amendment!as though further amending it were necessary to escape it.

In point of historical and constitutional fact, nothing could be further from the truth: the only amendment necessary for gun legislation, on the local or national level, is the Second Amendment itself, properly understood, as it was for two hundred years in its plain original sense. This sense can be summed up in a sentence: if the Founders hadnt wanted guns to be regulated, and thoroughly, they would not have put the phrase well regulated in the amendment. (A quick thought experiment: What if those words were not in the preamble to the amendment and a gun-sanity group wanted to insert them? Would the National Rifle Association be for or against this change? Its obvious, isnt it?)

The confusion is contemporary. (And, let us hope, temporary.) It rises from the younger-than-springtime decision D.C. v. Heller, from 2008, when Justice Antonin Scalia, writing for a 54 majority, insisted that, whether he wanted it to or not, the Second Amendment protected an individual right to own a weapon. (A certain disingenuous show of disinterestedness is typical of his opinions.)

This was an astounding constitutional reading, or misreading, as original as Citizens United, and as idiosyncratic as the reasoning in Bush v. Gore, which found a conclusive principle designed to be instantly discardedor, for that matter, as the readiness among the courts right wing to overturn a health-care law passed by a supermajority of the legislature over a typo. Anyone who wants to both grasp that decisions radicalism and get a calm, instructive view of what the Second Amendment does say, and was intended to say, and was always before been understood to say, should read Justice John Paul Stevenss brilliant, persuasive dissent in that case. Every person who despairs of the sanity of the country should read it, at least once, not just for its calm and irrefutable case-making but as a reminder of what sanity sounds like.

Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both keep arms and bear arms, he demonstrates, were, in the writers day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. The one seemingly sound argument in the Scalia decisionthat the people in the Second Amendment ought to be the same people referenced in the other amendments, that is, everybodyis exactly the interpretation that the preamble was meant to guard against.

Stevenss dissent should be read in full, but his conclusion in particular is clear and ringing:

The right the Court announces [in Heller] was not enshrined in the Second Amendment by the Framers; it is the product of todays law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Courts announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding . . .

Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendmentindeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.

So there is no need to amend the Constitution, or to alter the historical understanding of what the Second Amendment meant. No new reasoning or tortured rereading is needed to reconcile the Constitution with common sense. All that is necessary for sanity to rule again, on the question of guns, is to restore the amendment to its commonly understood meaning as it was articulated by this wise Republican judge a scant few years ago. And all you need for that is one saner and, in the true sense, conservative Supreme Court vote. One Presidential election could make that happen.

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Read the rest here:
The Second Amendment Is a Gun-Control Amendment




Pierre Teilhard De Chardin | Designer Children | Prometheism | Euvolution