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Does the Second Amendment Only Apply to State Militias? Liberals Are Making the Case — But We Look at the Evidence

Dec. 19, 2012 9:10am Mytheos Holt

Liberals Say Second Amendment, Right to Keep and Bear Arms Only Applies to Militias, Supreme Court Disagrees

Thomas Jefferson

Whenever the subject of gun control comes up, supporters of the practice (generally of the liberal persuasion) inevitably run up against one major roadblock to pushing sweeping laws — specifically, the United States constitution, and its second amendment, which protects a sweeping right to keep and bear arms.

Thus, experts have read the amendment in a way that hasn’t banned the ownership of weapons altogether. This reading has only been strengthened by recent Supreme Court cases such as District of Columbia vs. Heller, and McDonald vs. Chicago, which have codified the right to keep and bear arms as being as important as other rights such as the right to free speech.

Undoubtedly, this is frustrating to many opponents of gun rights, since even in moments of widely felt national tragedy like the present moment, their agenda requires a constitutional justification as well as a political one – a fact that puts them at a permanent disadvantage relative to gun rights supporters.

Which is why opponents of gun rights have seized on a well-worn constitutional argument in the wake of the shootings at Sandy Hook Elementary. That argument – an old chestnut of the anti-gun community – is that the second amendment doesn’t actually grant every American a right to keep and bear arms, and is in fact obsolete because it only applies to members of state militias. This argument focuses on what legal scholars call the prefatory clause of the second amendment, bolded below for emphasis:

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.

So since the amendment itself mentions the maintenance of “well regulated” militias as the purpose of the right to keep and bear arms, the argument goes, gun control is perfectly permissible so long as it only targets private citizens and not state militias. In fact, the liberal Daily Beast published an article on Tuesday making this exact argument.

The Argument for “Militia-Only” Gun Ownership

So well-worn is this argument that Justice John Paul Stevens used it in his dissent in District of Columbia vs. Heller (emphasis added):

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

As did Justice Stephen Breyer in the same case (emphasis added):

The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

Of these two Justices, Breyer remains on the court, and would presumably be all too happy to resurrect this argument to limit the scope of the Second Amendment. So at the level of legal strategy, it is easy to see where this argument – that the Second Amendment is much narrower in scope than a generalized right to bear arms – might be appealing.

Illinois gun owners and supporters file out NRA applications while participating in an Illinois Gun Owners Lobby Day convention before marching to the Illinois State Capitol Wednesday, March 7, 2012 in Springfield, Ill. Credit: AP

The Argument Against the Liberal Interpretation

But does this interpretation actually follow from the text? Certainly, the majority opinion in District of Columbia vs. Heller, written by Justice Antonin Scalia, does not find this reasoning persuasive (emphasis added):

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

Scalia’s reasoning is fairly easy to understand. That is, simply saying why a right is necessary to protect before claiming that it is a right does not obviate the existence of the right once that reason ceases to be in effect.

For instance, one can imagine the founders drafting the First Amendment’s protection of “freedom of the press” in order to protect the distribution of anonymously authored pamphlets, or to allow people to use privately purchased printing presses. Yet if the first amendment were phrased, “A robust distribution of political pamphlets being necessary to the maintenance of a free society, Congress shall make no law abridging the freedom of speech,” would anyone seriously argue that such a right would not cover laser printing or online news organizations? Certainly, Justice Scalia (who has found that the first amendment covers things the founders never could have imagined, such as video games) would not accept such an interpretation.

Yet still, legal scholars argue over the meaning of the text. Christiane Amanpour’s show on CNN featured a segment recently on this very topic:

The Context

So what’s the reality of the argument?

The answer varies depending on whether one is talking about historical or legal reality. Historically, the question of what the Second Amendment is supposed to mean is almost certainly never going to be solved, because conflicting sources exist on both sides of the issue, and conflicting interpretations of those sources have already proliferated. The reason for this is partially that the gulf between militias and ordinary people was not nearly so large in 1790 as it is now, and partially because arguably the most obvious original purpose of the Second Amendment (giving citizens the means to resist the government by force) would be impossible to fulfill without extending gun rights far beyond what even their most friendly supporters would allow. In short, like the homemade printing press example above, the reasons the amendment was originally ratified are difficult to translate to a modern context.

However, in terms of the present legal regime, the answer to how the Second Amendment is likely to be interpreted for the foreseeable future is fairly easy to answer.

Legal Reality

For now, at least, the legal reality regarding the Second Amendment is that it does guarantee a right to keep and bear arms of some kind to individual citizens. Barring a massive shift in power on the court, this is unlikely to change, as five of the sitting justices voted to hold that the right exists and protects citizens against both state and federal law in the two cases cited above.

Moreover, even cases that the majority of justice disagree with are not always changed after the fact, given the varying attitudes of various jurists towards the importance of upholding precedent. For the foreseeable future, therefore, the right to keep and bear arms is a fixed reality of the American legal and constitutional landscape.

However, in practice, this tells us very little about how far that right extends, which is where the current (and future) legal debate is likely to focus. A right to own a handgun is one thing, after all, but what about the right to own rocket launchers? Miniguns? Anti-tank ordinance? An actual, physical tank? Are all of these things protected by the right to keep and bear arms? They are, after all, arms.

Fortunately for those worrying about their neighbors acquiring weapons grade helicopters, even the most stringent supporters of gun rights admit that the law allows for limits on what sort of weapons are protected, or on how those weapons might be obtained. For his part, Scalia would limit the amendment solely to weapons that can be carried by an individual human being, knocking such armaments as tanks and missiles out of contention, and admitted in the majority decision in Heller that regulations such as background checks and concealed carry permits almost certainly pass constitutional muster (emphasis added):

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

This leaves gun control advocates with some degree of leeway legally in terms of what they can do to control access to weapons. For instance, it is possible to interpret that the Constitution permits bans on certain types of magazines, and given that the court has declined to invalidate a previous assault weapons ban, this too would be possible.

Is There a Bigger Issue Than Guns?

What is less clear is whether these policies would have the desire effect of stopping incidents like Sandy Hook from happening. The Daily Beast’s Megan McArdle has already written a lengthy post explaining why this is almost certainly not the case (emphasis added):

You can, to be sure, name one or two things that might make a marginal difference: ban extended-capacity magazines, and require background checks for private sales. As a proponent of reasonable gun control that in some ways goes farther than current rules (I’d like to require that people pass a shooting and gun safety test before they can own a gun), these rules don’t strike me as crazy.

But we are back to generic solutions. These “reasonable controls” would not, in fact, have done much to stop the horror at Newtown; Lanza’s problem was not that he didn’t know the four rules of gun safety, or that his aim was bad. And Lanza didn’t buy the guns, so a background check would not have stopped him.

Could we go bigger? Should we ban the relatives of anxious sad sacks from buying guns? How about family friends? (Michael Carneal broke into a friend’s house while they were away for Thanksgiving and stole the guns he used to shoot up his Kentucky school.) The question answers itself; the kind of all-knowing surveillance regime that this would require would be both impossible, and intolerable.

Reducing the magazine sizes seems modesly more promising, but only modestly. It takes a few minutes of practicing to learn how to change a magzine in a few seconds. Even if you banned magazines, forcing people to load the gun itself, people could just carry more guns; spree shooters seem to show up, as Lanza did, with more guns and ammunition than they actually need. In this specific case, it might well not have helped at all. Would Lanza really have been gang-rushed by fast-thinking primary school students if he stopped to reload?

Indeed, McArdle concludes, the only policy that would absolutely stop this sort of thing would be to ban all guns, categorically. And that is both politically and constitutionally impossible, and in all likelihood will remain so for the foreseeable future.

Moreover, it is not clear that guns are the issue so much as mental health is. In writing this article, we reached out to the National Rifle Association for comment, and while they declined, they did suggest David Kopel of the University of Denver as a source to talk over the constitutional niceties of this question. Dr. Kopel did not respond to a request for comment, but as it happens, he did publish a Wall Street Journal op ed on this topic recently, which we excerpt below (emphasis added):

Finally, it must be acknowledged that many of these attacks today unfortunately take place in pretend “gun-free zones,” such as schools, movie theaters and shopping malls. According to Ron Borsch’s study for the Force Science Research Center at Minnesota State University-Mankato, active shooters are different from the gangsters and other street toughs whom a police officer might engage in a gunfight. They are predominantly weaklings and cowards who crumble easily as soon as an armed person shows up.[...]

Real gun-free zones are a wonderful idea, but they are only real if they are created by metal detectors backed up by armed guards. Pretend gun-free zones, where law-abiding adults (who pass a fingerprint-based background check and a safety training class) are still disarmed, are magnets for evildoers who know they will be able to murder at will with little threat of being fired upon.

People who are serious about preventing the next Newtown should embrace much greater funding for mental health, strong laws for civil commitment of the violently mentally ill—and stop kidding themselves that pretend gun-free zones will stop killers.

So while the law may permit many different remedies that involve the restriction of access to guns (while staying well shy of the “Second Amendment is inoperable because of militias” theory), these remedies may not be the correct ones, according to some critics. As to what remedies would be correct, that is a topic more thorny than even the question of the original meaning of the Second Amendment, and therefore possibly beyond the powers of even the most brilliant court to solve.

In CONTROL, Glenn Beck presents a passionate, fact-based case for guns that reveals why gun control isn’t really about controlling guns at all; it’s about controlling us. Find out more HERE.

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Comments (262)

RaydocX
Posted on December 19, 2012 at 11:41am
Uhm, gang… check the main Blaze page…
Arizona school in a lockdown after a cafeteria worker ‘saw an armed man’ on the campus before school.

The terrorists can make us tie ourselves in knots… Ahmadinejad should send cells to the major cities across the US with instructions just to walk past schools carrying Airsoft guns as school is starting… a nation too content with its freedom, we’ve forgotten what the cost of that freedom is, and too few are equiped to fight for it…

the teachers that died protecting their kids were heroes. The people who did not look at the possibilities and see that something more might be necessary did not give those heroes enough tools. and the politicians, anarchists, socialists, and ‘progressives’ who seek to use that tragedy to advance their own goals are reprehensible.

but you know this ‘alleged’ gunman will somehow further inflame the debate… maybe it’s not Ahamadinejad… maybe it’s Michael Moore, and Dianne Feinstein, and the Brady group with false flag displays to fan the flames…

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Uechi
Posted on December 19, 2012 at 11:38am
Once again Encinom you demonstrate what a complete ignorant sap you really are. I suggest you read some of the words of the Founding Fathers about firearms and what they meant by “Militia.” Oh I forgot your a moron so you mostly like hate Washington, John and Sam Adams, Thomas Jefferson and the rest. There are two sources you might try they are called the Internet and the Library dumbo.

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jdog777
Posted on December 19, 2012 at 11:37am
This question was recently brought to the Supreme Court… The SCOTUS said that to possess and bear arms is an individual right. PERIOD. The forefathers said it.. the court said. The Progressives ignore it. Enough said.

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Gabriel71
Posted on December 19, 2012 at 11:33am
Completely agree that the right to keep and bear arms are individual rights, maintained by the person.
Also, the right was secured by the Constitution to allow the people to resist their government. If the government has AR’s, the People should have AR’s.
Now, on the matter of grenades, rocket launchers, tanks, et al… The right to keep and bear is to maintain individual rights. When you resist, you need to resist that person (or persons) in a 1-on-1 basis. When used properly, a gun, even an automatic, will deal with that person 1-on-1. The chances of harming others is extremely low, unless that’s your intent and then the problem is 100% you. Grenades and up – when used properly, their intent is to kill multiple people, not the specific one you are targeting, thus you’re infringing on THOSE peoples rights to exist and it makes those items only applicable in the event of total war.

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Dougral Supports Israel
Posted on December 19, 2012 at 11:30am
A few years ago the Army used the slogan “An Army of One”. Well, liberals, I consider myself to be “A Militia of One”.

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hauschild
Posted on December 19, 2012 at 11:25am
Nearly 100 Trillion in debt and THIS is the debate (even our side) is concerned about? I mean, it’s not like the “right” to bear arms is an actual Amendment (2nd) or anything, right???

God, conservatives are a sharper lot on average, but we’re certainly willing to take the progressive bait anytime.

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bicyclemilitia
Posted on December 19, 2012 at 11:20am
What a Militia was then and what they consider it today are to different things. I would argue that with current gun laws we are already well regulated, and since we are under attack by our own Government I would call us a Militia! After all in the times the Bill of Rights were written a Militia was just men from each town with their own weapons joining with other Americans to defend!

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jessieH
Posted on December 19, 2012 at 11:15am
Every able bodied citizen is a member of the militia, no matter what our public servants try to spew out. Without our weapons to defend ourselves, our other Rights are in danger of being taken away from us. The government will not stop at a weapons ban. They continue to chip away at the Constitution. I doubt half have even read it. Government, sounds real important when you say it. But, they are all just elected public servants, nothing more. Their opinions are no better than ours. They have speech writers that put words in their mouths. We might as well elect some late night comic to serve us. What we want or say means nothing to them. They only care about elections, to keep their power.

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OUTLAW_WEALTH
Posted on December 19, 2012 at 11:13am
Sandy Hook may have been perpetrated by professionals. There was a “second shooter”. In this case and the Aurora case, there are disinformation campaigns going on.

Time to get to the truth – come on media, do your job, not your politics.

Anyway, time to arm up and prevent this kind of crap from happening to you. Your government has failed already to stop these things, but is in fact using them only to further consolidate and abuse their power. Look at what Obama and Biden are doing to attempt to weaken our Constitution. Biden has no business OR authority to drive any legislation on the matter whatever. That belongs to WE the people, through our representatives. The Presidency is the tail, attempting to wag the dog.

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Brian
Posted on December 19, 2012 at 11:11am
Scalia is smarter than these idiot liberals justices IN HIS SLEEP.

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AmericanStrega
Posted on December 19, 2012 at 10:59am
I just had a phone conversation with my Dad. He believes “assualt rifles” should be banned because a person can have more than one clip for them and can pump clip after clip into them and can thus kill more people. I asked him if my semiauto pistols should be outlawed since I can pump clip after clip into them. He asked me, “You have more than one clip for your pistol?”. I told him I did. He then told me I do not need more than one clip and since I do have more than one clip then I only have them so I could go out and kill people. I hung up on him.

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barber2
Posted on December 19, 2012 at 10:53am
The Chicago radicals have been able to keep hidden Obama’s school records, taken over the media, probably stolen an election, so what is next ? Taking away gun rights and silencing conservative media outlets. Very ” transparent ” to any student of history. This is what all radical Big Brother types always do.

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JeffersonsPen
Posted on December 19, 2012 at 10:52am
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. —Benjamin Franklin

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conservative karl
Posted on December 19, 2012 at 10:50am
every other Ammendment in the bill of rights applies to individual freedoms… so why would only that one ammendment suddenly step away from that format in order to address a right of government to regulate and infringe on your ability to keep and bear arms?

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Themeem
Posted on December 19, 2012 at 10:47am
The entire Nation is rightfully stunned when many people are killed at once, especially little kids. And then the argument is always “what are we going to do about the guns?”
While this might be a good question, I always come around to the fact of just how many people are killed on our highways each year because of drunk driving. Twenty kids may not be killed at once in a highway accident by a drunk driver, but all together the number is quite high.
So why is there nothing done to the drunk driver before they become killers? Just how many times does a person have to be stopped for DWI before facing some long jail time?
I suppose that if the libs succeed in taking away all our guns legally owned, then when the time comes for rebellion we can all just line up in front of the White House and Capital building and ram them. It might help to have some Moon Shine on board.
Yeah!

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bemo234
Posted on December 19, 2012 at 10:46am
What this this evil maniac proved is that our local, city, state and federal governments CAN NOT protect you or your children.

He also set an example to all the sleeper cell terrorist, waiting for their chance to go out in a blaze of ..of…well a blaze

We must maintain our arms and arm up even more, we must not cow down to the paper azzez we call our political leaders as they march us down the road of tyranny.

A Russian leader said of Uzbekistan after a brief visit that he originally thought its people were sheep, so subdued and obedient, but he now knows they are actually like Fish! A people with no will of their own!

We must never let this be said or even thought of, especially by our politician, whom work for us and not the other way around

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Techcon
Posted on December 19, 2012 at 10:46am
So,

If it ONLY applies to state militias, then how in the HELL can the central government regulate arms?

That would be for the states to do, since they have a right (derived from the fact that they are “necessary” to THEIR freedom) to regulate THEIR own militias.

So it necessarily follows that ALL Federal gun laws are, in fact, Unconstitutional.

Do these g-damn Spoiled Brat leftists have any BRAINS?

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bemo234
Posted on December 19, 2012 at 10:44am
What this this evil maniac proved is that our local, city, state and federal governments CAN NOT protect you or your children.

He also set an example to all the sleeper cell terrorist, waiting for their chance to go out in a blaze of ..of…well a blaze..or a blast

We must maintain our arms and arm up even more, we must not cow down to the paper azzez we call our political leaders as they march us down the road of tyranny.

A Russian leader said of Uzbekistan after a brief visit that he originally thought its people were sheep, so subdued and obedient, but he now knows they are actually like Fish! A people with no will of their own!

We must never let this be said or even thought of, especially by our politician (whom work for us and not the other way around)

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BODYBAG
Posted on December 19, 2012 at 10:43am
@ENCINOM
Posted on December 19, 2012 at 10:38am
Unless you are in a WELL REGULATED MILITIA you have no right to bare arms.
—————————————————
moron
Who do you think makes up a militia?

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ENDGAME101
Posted on December 19, 2012 at 10:36am
The planet will be better off without a single liberal breathing.

They have perverted everything they touch and continue to do so.

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UnreconstructedLibertarian
Posted on December 19, 2012 at 10:34am
How quickly we forget that one of Obama’s first excercises as president was to sue 14 states who had active “State Guards” or militias – not falling under the nationalization provisions of the federal military. This just quietly went away when Washington pulled the purse strings and state after state capitulated. There is no such thing as a legal militia currently existing – but you haven’t been told that yet.

I’ve long argued that the Heller and McDonald cases were actual defeats of the 2nd Amendment. Until those decisions, the proper role of the 2′nd amendment was to limit federal firearm interference, leaving it to the states via the 9th and 10th amendment. That is how the system has worked, example Bloomberg’s NYC and the myriad of laws in both municipalities and states respectively. The Heller and McDonald cases placed yet another “states right” marble into the sack of the federal government, via the “incorporation” interpretation of the 14th amendment.

The 14th amendment has been established as the tool by which the Feds can just “assume” a previous state’s right – irrespective of its original constitutional intent – if the feds think it prudent to do so. This is what happened in the two aforementioned cases. The feds can now just do with “gun rights” as they dang well please – and are about to do so.

So, this whole “militia” argument is legally moot, as is any protetctions you think your state affords you. Both have been destroyed.

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capedconserv
Posted on December 19, 2012 at 10:33am
Even if the second amendment only applies to state militias, that would make it a state issue.

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oldduffer
Posted on December 19, 2012 at 10:29am
After the fall of France and the Dunkirk evacuation in 1940, Britain found itself short of arms for island defense. The Home Guard was forced to drill with canes, umbrellas, spears, pikes, and clubs. When citizens could find a gun, it was generally a sporting shotgun Ð ill suited for military use because of its short range and bulky ammunition.

Prime Minister Winston Churchill inspecting a No. 4 Enfield which the British adopted after Dunkirk, because the rifle could be mass produced.

British government advertisements in American newspapers and in magazines such as The American Rifleman begged Americans to “Send A Gun to Defend a British HomeÐBritish civilians, faced with threat of invasion. desperately need arms for the defense of their homes.” The ads pleaded for “Pistols, Rifles, Revolvers, Shotguns and Binoculars from American civilians who wish to answer the call and aid in defense of British homes.”

Pro-Allied organizations in the United States collected weapons; the National Rifle Association shipped 7,000 guns to Britain. Britain also purchased surplus World War I Enfield rifles from America’s Department of War.

Many posters are still availabe from collectors. Another example of Americans saving someones’ **** only to find it stuck back into our faces. Our good friends. Many like this jerk and I wish we would have known then what we know now and maybe we could have saved a lot of American lives.

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CALLMEMSGT
Posted on December 19, 2012 at 10:29am
So why are the leftists and “elites” so big on gun control? I have a hard time buying this NWO/Agenda 21 conspiracy stuff. However, as I watch the MSM, Dems, and other “elites” working in concert to push an AWB based on what happened in CT, I really have to scratch my head. I cannot believe that so many well educated people believe that the nut job could not have done what he did with a couple of revolvers. Has no one taken Joe Scarborough aside and given him “Firearms 101″. I just can’t believe that these elites are that stupid. I am very familiar with physical security measures that could easily make our schools safer but they are not even being discussed. Either I am smarter that a whole lot of “Elites” (which I highly doubt) or all of this gun control talk is about something else altogether. Something is not right.

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Wyerd_001
Posted on December 19, 2012 at 10:26am
If you take the context, even by the liberal side, a militia was citizens that could unit themselves to defend their freedom from a tyrannous government. The national guard does not meet this as it is controlled by the same government, and can be call by the federal government at any time.

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