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The Second Amendment to the United States Constitution
When thoughts turn to the issue of the
right to carry a handgun or any firearm for the purpose of self-defense,
many people think of the language of the Second Amendment to the United
States Constitution. The Second Amendment provides:
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.
This short and simple statement has provided the cornerstone for those
who seek to protect and preserve the right of the citizens of this country
to own, carry and use handguns and other firearms for all purposes intended
by the Founders. For many individuals, the language of the Second Amendment
is clear and simple. Like all of the provisions of the Bill of Rights, it
exists to protect an individual right.
However, the language of the Second Amendment also has provided much of
the ammunition for the those who would argue that the Second Amendment does
not protect an individual right. They assert that the Second Amendment
exists only to protect a state’s right to have a militia. The arguments
under these gun grabbers’ collective or states’ rights arguments cannot
survive honest constitutional scrutiny. People have rights. States have only
delegated powers. Once again, there is no shortage of printed materials on
this part of the firearms debate.
On November 2, 2001, the Fifth Circuit Court of Appeals (a federal
appeals court) released one of the best researched and reasoned opinions on
the history, scope, and meaning of the Second Amendment. In its decision in
U.S. v. Emerson, 5th Cir. App. No. 99-10331, the Fifth
Circuit rejected all of the "state’s rights" and "collective rights"
arguments which have been advanced by gun grabbers. The Emerson court
concluded that the Second Amendment was intended to and does exist to
protect an individual right to keep and bear arms. Everyone interested in
the Second Amendment should read the Fifth Circuit’s decision in Emerson.
Until you have a chance to do so, here are some statements by the Court
which are significant:
We conclude that Miller does not support the government's
collective rights or sophisticated collective rights approach to the
Second Amendment. Indeed, to the extent that Miller sheds light on
the matter it cuts against the government's position. Nor does the
government cite any other authority binding on this panel which mandates
acceptance of its position in this respect. However, we do not proceed on
the assumption that Miller actually accepted an individual rights,
as opposed to a collective or sophisticated collective rights,
interpretation of the Second Amendment. Thus, Miller itself does
not resolve that issue. We turn, therefore, to an analysis of history and
wording of the Second Amendment for guidance. In undertaking this
analysis, we are mindful that almost all of our sister circuits have
rejected any individual rights view of the Second Amendment. However, it
respectfully appears to us that all or almost all of these opinions seem
to have done so either on the erroneous assumption that Miller resolved
that issue or without sufficient articulated examination of the history
and text of the Second Amendment.
In the foregoing statement, the Fifth Circuit comments on the United
States Supreme Court decision in U.S. v. Miller, which has been often
misconstrued by gun grabbers as establishing a "collective right" under the
Second Amendment rather than an individual right. Another significant aspect
of the Fifth Circuit’s comment is that it recognizes that other federal
appellate courts, which it refers to as its "sister circuits," have rejected
the "individual rights" construction of the Second Amendment but the Fifth
Circuit notes that its sister circuits often did so by misconstruing the
Miller decision or otherwise without giving a careful historical
analysis to this portion of the Bill of Rights.
The Fifth Circuit then examined the contextual meaning of the word "the
people" as contained in the Second Amendment. In doing so, it concluded:
For the sophisticated collective rights model to be viable, the word
"people" must be read as the words "members of a select militia". The
individual rights model, of course, does not require that any special or
unique meaning be attributed to the word "people." It gives the same
meaning to the words "the people" as used in the Second Amendment phrase
"the right of the people" as when used in the exact same phrase in the
contemporaneously submitted and ratified First and Fourth Amendments.
There is no evidence in the text of the Second Amendment, or any
other part of the Constitution, that the words "the people" have a
different connotation within the Second Amendment than when employed
elsewhere in the Constitution. In fact, the text of the Constitution, as a
whole, strongly suggests that the words "the people" have precisely the
same meaning within the Second Amendment as without. And, as used
throughout the Constitution, "the people" have "rights" and "powers," but
federal and state governments only have "powers" or "authority", never
"rights." Moreover, the Constitution's text likewise recognizes not only
the difference between the "militia" and "the people" but also between the
"militia" which has not been "call[ed] forth" and "the militia, when in
actual service."
* * *
It appears clear that "the people," as used in the
Constitution, including the Second Amendment, refers to individual
Americans.
In the eyes of the Fifth Circuit, the phrase "the people"
meant individual Americans not "states," "governments" or government
organized "militias." The Fifth Circuit could find no rational basis for the
claim by gun grabbers that the term "the people" means anything other than
individual Americans.
In summarizing its research and findings on the issue, the
Fifth Circuit wrote:
Given the political dynamic of the day, the wording of
the Second Amendment is exactly what would have been expected. The
Federalists had no qualms with recognizing the individual right of all
Americans to keep and bear arms. In fact, as we have documented, one of
the Federalists' favorite 1787-88 talking points on the standing army and
federal power over the militia issues was to remind the Anti-Federalists
that the American people were armed and hence could not possibly be placed
in danger by a federal standing army or federal control over the militia.
The Second Amendment's preamble represents a successful attempt, by the
Federalists, to further pacify moderate Anti-Federalists without actually
conceding any additional ground, i.e. without limiting the power of the
federal government to maintain a standing army or increasing the power of
the states over the militia.
This is not to say that the Second Amendment's preamble
was not appropriate or is in any way marginal or lacking in true
significance. Quite the contrary. Absent a citizenry generally keeping and
bearing their own private arms, a militia as it was then thought of could
not meaningfully exist. As pointed out by Thomas Cooley, the right of
individual Americans to keep, carry, and acquaint themselves with firearms
does indeed promote a well-regulated militia by fostering the development
of a pool of firearms-familiar citizens that could be called upon to serve
in the militia. While standing armies are not mentioned in the preamble,
history shows that the reason a well-regulated militia was declared
necessary to the security of a free state was because such a militia would
greatly reduce the need for a standing army. Thus, the Second Amendment
dealt directly with one of the Anti-Federalists' concerns and indirectly
addressed the other two. While the hard-core Anti-Federalists recognized
that the Second Amendment did not assure a well-regulated militia or
curtail the federal government's power to maintain a large standing army,
they did not control either branch of Congress (or the presidency) and had
to be content with the right of individuals to keep and bear arms.
Finally, the many newspaper articles and personal
letters cited indicate that, at the time, Americans viewed the Second
Amendment as applying to individuals. This is confirmed by the First
Congress's rejection of amendments that would have directly and explicitly
addressed the Anti-Federalists' standing army and power over the militia
concerns.
We have found no historical evidence that the Second
Amendment was intended to convey militia power to the states, limit the
federal government's power to maintain a standing army, or applies only to
members of a select militia while on active duty. All of the evidence
indicates that the Second Amendment, like other parts of the Bill of
Rights, applies to and protects individual Americans.
We find that the history of the Second Amendment
reinforces the plain meaning of its text, namely that it protects
individual Americans in their right to keep and bear arms whether or not
they are a member of a select militia or performing active military
service or training.
We reject the collective rights and sophisticated
collective rights models for interpreting the Second Amendment. We hold,
consistent with Miller, that it protects the right of individuals,
including those not then actually a member of any militia or engaged in
active military service or training, to privately possess and bear their
own firearms, such as the pistol involved here, that are suitable as
personal, individual weapons and are not of the general kind or type
excluded by Miller.
While the Fifth Circuit’s opinion in Emerson is not
binding in Tennessee because Tennessee falls within the jurisdiction of the
Sixth Circuit, the Fifth Circuit’s decision remains one of the most detailed
and well reasoned opinions on the meaning of the Second Amendment.
Ultimately, the United States Supreme Court will address this issue and, in
the opinion of most constitutional authorities, will follow an individual
rights interpretation of the Second Amendment.
A historical analysis of the passage of the Fourteenth
Amendment establishes that the Second Amendment establishes a threshold
protection on the individual right to keep and bear arms which the
individual states may not impair. Thus, to whatever extent the Second
Amendment guarantees the right of individuals to keep and bear arms, the
individual states and local governments may not enact laws or legislation
that infringes the scope of the federal protection. Of course, this does not
mean that these governments will not enact or seek to enforce
unconstitutional laws – they do that on a regular basis. |
