There Is No Second Amendment Right To A Gun

Steve Max

We are posting this commentary in the wake of yet another school shooting, at Arapahoe High School in Centennial, Col. and in memory of the Sandy Hook tragedy.Editors

I have long admired abolitionist leader Frederick Douglass and his colleagues in the Liberty Party for their clear-sighted view that the US Constitution was a “glorious liberty document,” that did not condone slavery.  William Lloyd Garrison had condemned the Constitution as an “agreement with Hell,” going so far as to publically burn a copy. Douglass, to the contrary, understood the importance of basing abolitionist principles on the Constitution, and of not conferring its legitimacy upon the enemies of liberty. Today, progressives must claim the legitimacy of the Constitution in advocating gun control, and not let it be further hijacked by the Right. 

Everyone agrees with the gun lobby that the Constitution guarantees the right to own guns. Having given away the argument, we then ask, “But must there be quite so many bullets in the magazine?” It is time to take the strongest position. There is no individual right to own a gun. The Second Amendment guaranteed the right to have state militias. The gun ownership clause was there to make the militia possible. There have been no state militias since 1903, and there is no longer a constitutional right to gun ownership. It doesn’t exist! 

The congressional debate over the Second Amendment is most instructive. The overall context was this: The Constitution (1787) had created two institutions new to the United States, a standing army and a president who was also commander in chief.  In this combination, many feared European despotism. What if the president made himself a king and used the army against the people? The answer was close at hand. The governors of the states would call out the militia to restore democracy. But in those days, every militiaman was required to bring his own gun. The states didn’t have any. What if the president first took away all the guns? Well, the Constitution would have to say that he can’t, hence the Second Amendment.

As always, nothing is simple. The Federalists (Hamilton) wanted a strong national standing army and hoped that by guaranteeing the state militias they could overcome popular objection. Many among the Jeffersonian Republicans didn’t even trust the militia, and wanted to guarantee individual gun ownership without reference to militia service. Both sides agreed that the main threat in contention was the army of the United States, and the debate was over how citizens could best defeat the army.

Here is Madison’s first draft of what became the Second Amendment:

“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.“

To get his provision through Congress, Madison had linked together both concepts – armed citizens and militia service.  Note that because of that linkage, the amendment ends with a contentious objector clause for Quakers, Moravians and others.  The bill was sent to committee and came back with an interesting addition:

“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.”

The phrase “composed of the body of the people,” (which in 1789 meant white men) reflected another debate of that era. Some thought that militia service should be a universal requirement. This language paralleled existing militia laws in many states, and was in keeping with colonial tradition that had required all able-bodied men to serve and to bring their own guns.  Alexander Hamilton had argued against this view in Federalist Paper 29, saying that so large a body could not possibly be “well regulated,” meaning well drilled and disciplined. Federalists tended to support a smaller “select” militia. These two views were reflected in the congressional debate between Federalists and anti-Federalists over this clause.  

The bill went back and fourth between the two houses of Congress. The Federalist Senate took out the universal service clause along with the conscientious objection.  In those days it was well remembered that England had tried to use colonial era conscientious objection provisions as an excuse to disband the revolutionary militias. (All religions oppose war, therefore go home.) During the debate, the anti-Federalists attempted to add amendments abolishing a peace-time standing army, but these were defeated..* The final version read:

“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.”

Clearly, the right to bear arms was connected to militia service. There were not the votes in either house to pass a stand-alone right to gun ownership.

The year after ratification, Congress passed the Militia Acts of 1792. We need not go into the wicked purposes to which the militia was put under federal direction. For the sake of this argument it is sufficient to note that once again the idea of universal gun ownership was linked to universal military service. Under the Second Militia Act, all (free white) men of military age were conscripted into the militia, and every such man was required, at his own expense, to go out and buy a gun along with prescribed quantities of shot and powder, a bayonet and other equipment.

In asserting the link between the right to bear arms and military service, we should not be distracted by the 2008 Supreme Court decision (District of Columbia v. Heller) that discounted the militia clause of the Second Amendment. The five justices who voted for it were all Reagan and George Bush appointees, and the decision is no more worthy of respect than such subsequently repudiated decisions as those declaring African Americans ineligible for citizenship, or upholding the Japanese Internment Act.

The lesson of this history is clear. The Second Amendment was rooted in the then living memory of the militia-fought battles of Concord, Lexington and Bunker Hill. A modern day equivalent of those battles would turn America into Syria or worse.  We need to start saying loudly and strongly that if you want a military gun, go join the National Guard – they have one for you to use. Otherwise, government at all levels has the right to limit guns just as it does drugs, tobacco, gambling, alcohol, tainted meat and a host of other evils.  There is simply no constitutional right to individual gun ownership.

______________________

*Strictly speaking, the terms Federalist and Republican weren’t organized parties until 1795. At this time (1789) they were less formal points of view in Congress, and were known as the pro- and anti-administration factions.

Steve Max is a vice-chair of DSA, a life-long community organizer and a founder of the Midwest Academy and the Campaign for America’s Future.

 

Individually signed posts do not necessarily reflect the views of DSA as an organization or its leadership.

 


Showing 16 reactions


commented 2016-08-28 01:13:52 -0400 · Flag
Interesting that the author begins the article expressing his admiration for Frederick Douglass and his view of the Constitution. Frederick Douglass was famously a supporter of the Second Amendment and it’s guarantee of the individual’s right to keep and bear arms.
commented 2016-07-29 01:54:33 -0400 · Flag
Never disarm the proletariat!!
commented 2016-06-27 14:12:50 -0400 · Flag
All Socialist want to take away the individuals rights. This is the only way that Socialism can work in a diverse population.
commented 2016-04-25 00:29:20 -0400 · Flag
LOL

Talk about complete ignorance of history and the intent of the Framers.
Not to mention, illiteracy for not being able to read 27 words without getting lost.

There are 35 cases before Heller in 2008, in which SCOTUS referenced the 2nd Amendment.
http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm
In ALL those cases, SCOTUS recognized that the RKBA (Right to Keep and Bear Arms) was an individual right INDEPENDENT of any militia service.
In fact, the militia clause in the 2nd Amendment is NOT a restriction but justification for insuring that the RKBA is NOT infringed.
This article covers the proper use of English grammar to interpret the 2nd Amendment
http://www.constitution.org/2ll/schol/2amd_grammar.htm

Since 2008, both MacDonald (2010), which incorporated the 2nd Amendment RKBA protection against infringement by ALL levels of government, and the more recent Caetano vs Massachussetts (2016) re-iterated that the right to be armed is an individual right
And Caetano was handed down by an 8 member Court following the passing of Justice Scalia

I’ll stop here.
This opinion piece is pure bunkum.
A pathetic fabrication.
commented 2016-03-09 10:24:14 -0500 · Flag
Well the Justices in United States v. Cruikshank (1876) were not appointed by Bush or Reagan and they came from a time close to the creation of the Bill or Rights. Those Justices made it clear that the right to bear arms did not come from the Constitution.

“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence”

The true point is clear, do Americans have a right to defend themselves and their loved ones from those who would want to hurt them? If your answer is yes then the tools to make that possible must also be available. There is simply no other way to look at it.
commented 2016-01-14 09:50:49 -0500 · Flag
Naturally we should only respect the decisions of SCOTUS when the justices either belong to the same political persuasion as we do or their decision suits our agenda.
commented 2015-12-28 18:34:27 -0500 · Flag
The thing about Heller V DC can’t be ignored because the SCOTUS has the job to understand and interpret The Constitution which is the supreme law of the land. Shut the Fuck up!
commented 2015-12-28 18:32:19 -0500 · Flag
IF YOU WANT MY GUNS, YOU MUST TAKE THEM FROM ME BY FORCE.
commented 2015-10-24 10:28:07 -0400 · Flag
I have but one point to make. The NH delegation to the Constitutional Conventions proposed a clause to the Second Amendment that made it perfectly clear that the right to a gun was an individual right. It left no ambiguity. It was voted down by the convention. So when given the opportunity to clearly make gun rights an individual right they said no. How is that hundreds of years later we have such a hard time trying to decipher the meaning of the Second Amendment? To me it is as simple as this. Hey these guys want to make owning a gun a right for everyone. What do you think? No we don’t want that. So what do you want? They can have a right to a gun if they belong to a regulated militia. It’s that simple.
commented 2015-10-19 22:28:13 -0400 · Flag
Your interpretation of the intent of the second amendment is funny, and also incorrect.
commented 2015-08-07 20:36:37 -0400 · Flag
See, this right here is why I don’t subscribe to any political party; one starts looking really good until that one thing that’s just friggin’ stupid. Gun control is just cultural bullcrap, the total of gun-deaths are similar to the death toll of car accidents (and yet we do not ban Hummers, now do we?) and the people have the NATURAL right to arm themselves in however way they see fit. Not just for hunting, but also to protect themselves against the government oppression and a hypothetical state of chaos. There should be NO restriction of stockpiling weapons, except for WMDs, chemical weapons and biological weapons. If I want to have a collection of M-16s stored in a bunker waiting for the end times, I should be allowed to do that. I’m not comfortable with the government trying to disarm me. If liberals focused more on the ECONOMY and keeping the religious right from taking away our rights . . . then the right wing would crumble. This is going to be the kind of issue that divides us.
commented 2015-07-28 15:43:39 -0400 · Flag
you are a damn liar the Constitution clearly says the right of the people to keep and bear arms shall not be infringed on so yes the Constitution does say the individual has a right to a gun you liberals need to get your facts straight
commented 2014-12-24 10:29:21 -0500 · Flag
“government at all levels has the right to limit guns just as it does drugs, tobacco, gambling, alcohol, tainted meat…”

You sir are sadly misinformed. Can you please share the constitutional article the gives government the right to limit any of these. In fact, the Constitution bans all of them all. I guess your intent is to misinform the public often enough that the ignorant among us will start to believe.
commented 2014-12-23 21:53:45 -0500 · Flag
Hello,
I do not normally respond to such articles but I’m making an exception on this one due to a series of misconceptions in the writing. You said in your artcile that, “Everyone agrees with the gun lobby that the Constitution guarantees the right to own guns”. Perhaps the gun lobby makes this claim and perhaps it does not; I want to deal with the ideal presented here. The Constitution does not do any such thing. The SCOTUS has been quite clear since Barron v Baltimore that the first 9 Amendments were to be seen as being restrictive of National action only.

This means the enumeration confers no such right as the good judge John Marshall indicated in his opinion. The court, having reviewed the historical documentation at length, became quite convinced that the right existed previous to its enumeration in the Constitutions ‘Amendments’ and was merely added after Jefferson convinced Madison that his great mistake was not adding a Bill of Rights. If you are trying to ascertain the language of Madisons trist with the Bill ‘ex post facto’ as declarative of STATE intent, then as the good judge has instructed, you miss the point entirely and find yourself in a quandry over the courts view of private rights.

As for Congress struggling over an ‘individual ownership’ as you indicated here, “Clearly, the right to bear arms was connected to militia service. There were not the votes in either house to pass a stand-alone right to gun ownership”.

The individual made up the militia and so the theory that individuals were not counted on to have ownership of arms is preposterous. If your going to say, “FOR MILITIA SERVICE ONLY”, I would go on to say that the State (under the 10th Amendment) is free to protect itself in any manner it chooses and the Federal Government lacks authority to regulate this action. As a matter of fact it wasn’t until 2010 that the 2nd Amendment was even incorporated for use AGAINST the States, until then it was prohibitive of National action only.

In US v Miller the court said, “ The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion”. So whether or not ‘individuals’ were taken into account in your writing, the court finds them as the ‘parties of interest’ on whom the right is conferred because after all, what exactly is a civilian?

You go on to cite Hamilton, a known sympathizer of foreign interests, so of course Hamilton argued against it. Hamilton was eventually found out as the traitorous dog he was and was allowed to meet his maker by Aaron Burr, so ending his attempt at securing Englands interests further and perverting the fledgling Republic. I’ve quoted Hamilton……as a cautionary tale.

You go on to state that, “In asserting the link between the right to bear arms and military service, we should not be distracted by the 2008 Supreme Court decision (District of Columbia v. Heller) that discounted the militia clause of the Second Amendment. The five justices who voted for it were all Reagan and George Bush appointees, and the decision is no more worthy of respect than such subsequently repudiated decisions as those declaring African Americans ineligible for citizenship, or upholding the Japanese Internment Act”.

Again you find yourself gagging as you thrust yourself against your chain. The Heller decision contains some unspoken information that unless you are a savvy at Law you would miss. For instance let’s take the District of Columbia. One must keep in mind that D.C. is a territory and because of that the Constitution wasn’t fully in force under the doctrine created by congress and remarked on by the Court in Downes v Bidwell to wit;

Territorial Doctrine in Downes v Bidwell

1. That the District of Columbia and the territories are not states within the judicial clause of
the Constitution giving jurisdiction in cases between citizens of different states;
2. That territories are not states within the meaning of Rev.Stat. sec. 709, permitting writs of
error from this Court in cases where the validity of a state statute is drawn in question;
3. That the District of Columbia and the territories are states as that word is used in treaties
with foreign powers with respect to the ownership, disposition, and inheritance of property;
4. That the territories are not within the clause of the Constitution providing for the creation
of a supreme court and such inferior courts as Congress may see fit to establish;
5. That the Constitution does not apply to foreign countries or to trials therein conducted, and
that Congress may lawfully
Page 182 U. S. 271
provide for such trials before consular tribunals, without the intervention of a grand or petit
jury;
6. That where the Constitution has been once formally extended by Congress to territories,
neither Congress nor the territorial legislature can enact laws inconsistent therewith.

So what was the Heller decision? It was simply the court extending a portion of the Constitution to a Territory in the absence of any Congressional action, and I agree whole-heartedly with it. If the American people knew as a whole this information I shudder to think what they would do.

If I may make a suggestion it would be to spend more time reading the literature, there is far more to it than you may realize.
commented 2014-10-27 14:06:16 -0400 · Flag
I think this article puts your linkage between the militias and the second amendment in an even clearer light. Thanks for digging out the committee drafts and votes. http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery
commented 2014-08-03 08:47:35 -0400 · Flag
This is the single most un-scholarly article on the subject I have ever seen. If this is the best you can come up with, you should not plan on arguing before the higher courts. You have deluded yourselves, but even a liberal judge wouldn’t by this claptrap.

Starting a Local Chapter from Scratch (9pm Eastern)

October 04, 2016 · 5 rsvps
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So you are now a member of DSA, but there is no local chapter where you live. You are thinking of starting a local chapter, but you're not quite sure how to do it.

In Starting a Local Chapter from Scratch you will learn:

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