“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.”- Amendment II, U.S. Constitution
As Doug reported yesterday, the U.S. Supreme Court is going to take its first case on the Second Amendment in almost 70 years. During this period, legal scholars have debated whether the right to bear arms as described in the Second Amendment refers to an individual right or a collective right. For those of us who are certain that the right to bear arms is an individual right, it seems curious that of the ten amendments in the Bill of Rights that only this amendment was intended to be a collective right and a restriction on the individual’s rights rather than a restriction on the federal government.
Still I have found the construction of the Second Amendment to be problematic. Language evolves over time; this gives opponents of the Constitution an opening to make the words mean what they wish them to mean. What exactly did the framers mean by “militia” ? My understanding has always been that the framers preferred a citizen’s militia (not part of the government) to a permanent standing army as the first line of defense (the government would reinstate the army in times of war). If this was their intent, then it would make sense that the framers would want citizens to be armed to form militias in the event that the country came under attack from foreign threats or be ready in the event that the government became to oppressive.
My other problem with the construction of the Second Amendment is that I find the first part “A well regulated Militia, being necessary to the security of a free State” completely unnecessary. To me “the right of the people to keep and bear Arms, shall not be infringed” is short, sweet, and to the point. Individuals need to have the right to defend themselves, not only from the government but also from other individuals who threaten their lives, liberties, and property. A store owner should have every right to protect his store, his customers, his merchandise and himself from a hoodlum attempting to rob his store. A woman should have every right to carry a handgun to protect herself from the rapist hiding in the shadows. In both of these scenarios, the police (the government) are likely to not be of immediate assistance to these individuals.
Be that as it may, the Second Amendment says what it says and I still believe the authors of the amendment intended the right to bear arms as an individual right. Penn Jillette of Penn & Teller gave the best explanation of the meaning of the Second Amendment I have ever heard in an episode from their 3rd Season of their Showtime show Bullshit!
“A well regulated militia, being necessary to the security of a free state,” sure we need an organized military force to defend your country BUT “the right of the people to keep and bear arms shall not be infringed.”
This is the people in contrast with the militia. It doesn’t say “the right of the militia to keep and bear arms shall not be infringed” it says “the right of the people.”
Now why the word “people” ? Because the people who wrote this just fought a war for two years against a tyrannical state militia. They knew the time might come when they would have to do that again so they made the possession of weapons a right that the militia could never take away.
I have never heard this explanation before but it makes perfect sense. Penn goes on to say that the purpose of the Second Amendment was to make certain that the citizens could violently overthrow the government if the citizens found it necessary. It’s only natural that the government would try to disarm the citizen if it was under constant threat of an armed revolution. Moa, Lenin, and Stalin understood this perfectly well and said much the same thing.