Its important to know that The Second Amendment isn't the sole governance upon which we derive our rights to keep and bear arms. If you wish to study this matter in-depth, you'll discover
(to the dismay of anti-gun folks) that while the Second Amendment
is indeed only about collective rights for the sole purpose of defending the Republic. It nevertheless is
not exclusionary from permitting individual ownership of
(and this is the shocking part) the "common" arms of the time for said reasons -- "The security of a free State."
To fully understand the Second Amendment, it is not only necessary to read it -and- the many statements made concerning the matter by our founding fathers, but it is also important to research judicial litigation -- especially early judicial litigation.
The Second Amendment
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.
Surely one of the most argued about topics concerning its meaning, and in my opinion, misunderstood.
Please allow me to elaborate.
In short: The Second Amendment does not
grant individuals the right to keep and bear arms, rather, it
affirms two human rights. (1) That
people have an inherent right to security by means of protecting themselves with arms. (2) That when necessary, they have a right to form militias to secure their safety and freedoms -- that includes defending themselves against their own government.
One thing I always point out to "collective" rights individuals is that the term "Militia" doesn't just mean National Guards
(as is often mistakenly argued). It also means a defined class of private citizens as well.
In the United States Code:
USC Title 10 Section 311 Militia composition and classes: Are as follows:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
U.S. Supreme Court
In my opinion, to fully understand this subject, it is important for us not to ignore earlier litigation by the courts. And after you have studied the courts' positions on this subject. The only conclusion I can see one drawing on this subject is: Personal private ownership of firearms is a inalienable right not reliant upon the Second Amendment, and that the Second Amendment itself is a right of the citizen to form militias bearing their own arms or the common arms of the time to defend the security of our Republic.
Now here's a few U.S. Supreme Court cases I think are important:
United States v. Cruikshank, 92 U.S. 542 (1876) This was the first case in which the Supreme Court had the opportunity to interpret the Second Amendment. The Court recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right
"is not a right granted by the Constitution . . . neither is it in any manner dependent upon that instrument for its existence."
The indictment in Cruikshank charged, inter alia, a conspiracy by Clansman to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes.
The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the Second Amendment guaranteed only that the right shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had
"to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state.
Now this brings us to the next case:
Presser v. Illinois, 116 U.S. 252 (1886) Although the Supreme Court affirmed the holding in Cruikshank that the Second Amendment, standing alone, applied only to action by the federal government, it nonetheless found the states without power to infringe upon the right to keep and bear arms, holding that
"the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."
Presser, moreover, plainly suggested that the Second Amendment applies to the states through the Fourteenth Amendment and thus that a state cannot forbid individuals to keep and bear arms. To understand why, it is necessary to understand the statutory scheme the Court had before it.
The statute under which Presser was convicted did not forbid individuals to keep and bear arms but rather forbade
"bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law . . . ." Thus, the Court concluded that the statute did not infringe the right to keep and bear arms.
The Court, however, went on to discuss the Privileges and Immunities Clause of the Fourteenth Amendment, noting that
"it is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect."As the Court had already held that the substantive right to keep and bear arms was not infringed by the Illinois statute since that statue did not prohibit the keeping and bearing of arms but rather prohibited military-like exercises by armed men, the Court concluded that it did not need address the question of whether the state law violated the Second Amendment as applied to the states by the Fourteenth Amendment.
And of course we can't forget to look at this next case.
U.S. v. Miller, 307 U.S. 174 (1939) This is the only case in which the Supreme Court has had the opportunity to apply the Second Amendment to a federal firearms statute. The Court, however, carefully avoided making an unconditional decision regarding the statute's constitutionality; it instead devised a test by which to measure the constitutionality of statutes relating to firearms and remanded the case to the trial court for an evidentiary hearing (the trial court had held that Section 11 of the National Firearms Act was unconstitutional). The Court remanded to the case because it had concluded that:
"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
Thus, for the keeping and bearing of a firearm to be constitutionally protected
by the Second Amendment, the firearm should be a militia-type arm, i.e. common arms of the time. Today that would be the M16 rifle.
The case also made clear that the militia consisted of
"all males physically capable of acting in concert for the common defense" and that
"when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
In setting forth this definition of the militia, the Court implicitly rejected the view that the Second Amendment guarantees a right only to those individuals who are members of the militia. Had the Court viewed the Second Amendment as guaranteeing the right to keep and bear arms only to
"all males physically capable of acting in concert for the common defense," it would certainly have discussed whether, on remand, there should also be evidence that the defendants met the qualifications for inclusion in the militia, much as it did with regard to the militia use of a short-barreled shotgun.
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So anyway as you can see, there's lots more to the Second Amendment than you hear from most people commenting about it. And the important thing not to lose sight of IMO is: Remember, the constitution doesn't
grant you anything. It merely enumerates a certain list of rights by which all others may be protected.
.
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