The amendment was ratified by the States and authenticated by Secretary of State Thomas Jefferson as: “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.” In spite of the lower liberal federal courts interpreting it as protecting merely a collective right of state militias, the founders clearly meant all Citizens capable of bearing arms. It follows the 1st amendment because it is there to defend and secure our first amendment rights as a guard against tyranny. At Lexington and Concord, the British sent soldiers to confiscate Colonists weapons and arms and America was birthed in revolt to tyrannous laws and government actions. The Cockrum v. State decision reads: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government...”
The term “well regulated” in the late 1700’s meant that something was in proper working order, something that was calibrated correctly and something that was functioning as it should. When the term is applied to the militia of the time, it meant that the militia should be properly trained, exercise often and that they be able to carry out their tasks in an expedient and efficient manner.
Just as the pendulum in a grandfather clock is called a regulator, the term “well regulated” in the Second Amendment meant that the Founding Fathers thought that a well run and skillful state militia would be important to prevent the federal government from seizing too much control.
Where the Second Amendment refers to the militia, it refers to all Citizens capable of bearing arms. This does NOT refer to some force under the control of government. In fact, the federal government did not have control of a standing army for more than one hundred years.
The term “…well regulated…” did not mean regulation by legislative action in any sense of the word. It did not mean the National Guard. The National guard was not to be formed for another 116 years. The militia at the time the Second Amendment was written pertains to the men capable of bearing arms. In fact, up until the Militia Act of 1903, the militia still consisted of all men capable of bearing arms between ages 18 and 45. The Militia Act of 1903 separated the men into two distinct groups, the National Guard and the Reserve Militia. Some writers from the era refer to these two groups as the organized militia and the unorganized militia.
The Militia Act of 1903, merely recognized the fact that militia service by all able-bodied males was no longer necessary or compulsory. In fact, only a handful of state militias at the turn of the twentieth century even got together and exercised as an armed body.
Nowhere in the Militia Act of 1903 were the members of the Reserve Militia restricted or prohibited from bearing arms. Furthermore, the federal and state governments were not given the power to restrict firearm availability to the Reserve Militia. There were other acts that pertained to the militia also. The National Defense Act of 1916 and another act in 1933 and yet another in 1957. It is important for the reader to realize that the Reserve Militia now known as the Unorganized Militia has always retained the right to keep and bear arms. It is simply an intentional misinterpretation by modern anti-gun fanatics, that the Second Amendment only referred to the National Guard.
The term “being necessary to the security of a free state” meant that it was important to preserve the well being and integrity of each individual state with a well trained and efficient Militia. The Founding Fathers were very suspicious about a powerful central government and the power and influence that it could amass. They wanted to make certain that a powerful central government, would not be able to overwhelm each individual state.
The term “the right of the people to keep and bear arms” means just what it says. The term “the people” is used throughout the founding documents and nowhere does it mean anything other than the general population of the United States. Allow me to quote:
“Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the People.” – Tench Coxe, Pennsylvania Gazette, February 20, 1788.
When the Second Amendment was passed, each delegate at the Constitutional Convention knew full well that it protected the individual right to bear arms outside of military service. Those who believe otherwise, should do more homework before they go spewing their irrational beliefs and make complete fools of themselves. ESPECIALLY IF THEY ARE SITTING JUDGES, OR MEMBERS OF CONGRESS. THE COMPLETELY IGNORANT MAY BE EXCUSED FROM THEIR MISINTERPRETATION, BUT NOT ATTORNEYS GENERAL, LAWYERS, LEGISLATORS OR CONGRESSMEN.
“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” – Cockrum v. State, Source: 24 Tex.394, at 401-402 (1859)
Wherever the Constitution enumerates rights to the States, it says so, wherever it gives rights to the people it says that also. For anyone to contend that “…the people…” referred to in the Second Amendment does not mean what it says, is preposterous. The term “the people” is used throughout the Constitution and the other founding documents. The contention that the Right to Keep and Bear Arms applies only to government-run militias is groundless and has no historical foundation whatsoever.
According to the founders, guns (including AR-15’s, AK47s, and other assault rifles) belong in the hands of the citizens and their state militias, as plainly and eloquently spelled out in the Second Amendment. Thomas Jefferson and the founders did not craft the Second Amendment to protect the right of hunters and target shooters. It was included – right after the First Amendment guaranteeing political speech – to ensure the right of citizens to violently oppose a tyrannical federal government if need be. “Assault” weapons are the sort of tools that will be used if push comes to shove and the people must violently oppose the government. Any politician or group that wishes to handicap the people with lesser or no weapons to defend themselves against a powerful federal government is a traitor.
Leftists recoil at the prospect of armed resistance to a tyrannical centralized federal government and refuse to accept that this is what the Second Amendment is all about. “The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people,” wrote Fisher Ames, a member of the Massachusetts convention that ratified the Constitution in 1788. This concept is antithetical to the modern liberal who believes government to be a force of good.
“The Second Amendment was to protect the ability of the people to violently overthrow the government,” writes Richard Schrade, an attorney from Georgia and member of the Libertarian National Committee. “Let’s remember that this country was formed in a violent revolution. Let’s remember that at Lexington and Concord citizen fired on and killed government soldiers sent by the central government to confiscate their weapons and arms…. When viewed in this light, it is apparent that a limitation on automatic weapons would be an infringement on the purposes of the Second Amendment.”
To understand the Second Amendment as the Founders did, we need to remember what the Constitution does. It defines how the federal government is to function – and the very purpose of its design is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, the Constitution and, of course, any amendment to the Constitution.
The right of a citizen to keep and bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the state government. It is one of the “High Powers” delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it because it is above the law, and independent of lawmaking” – Cockrum v State, 24Tex394 (1859)
The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the federal government, limiting it precisely in order to secure our unalienable rights from attempts by people in government to violate or even infringe upon those rights. In the words of Thomas Jefferson, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
In fact, the Founders’ understanding of unalienable rights caused Madison and other Founders to oppose a bill of rights initially. Here is Hamilton in Federalist 84:
It has been several times truly remarked, that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of [royal] prerogative in favour of privilege[.] … Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations[.] … For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
For Madison and Hamilton, a bill of rights, traditionally a concession of privileges wrested from the sovereign political power, had no place in the American Constitution. (When Madison eventually realized that the public’s demand for a bill of rights made it a political necessity, he took responsibility for drafting it and made certain that it included the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Ninth was intended to insure that enumerating some rights would not have the effect of narrowing our understanding of the vast range of our unalienable rights.
Now, let’s consider the First Amendment before moving on to the Second. Please notice how it begins: Congress shall make no law … abridging the freedom of speech, or of the press[.]” The very first words of the very first amendment are “Congress shall make no law.” No rights are here granted to the citizen. They cannot be because those rights are unalienable, that is, already possessed by the citizen.
The First Amendment follows the logic of the Constitution as a whole; it restricts what the federal government – in this case, Congress – can do.
So does the Second: “the right of the people to keep and bear Arms, shall not be infringed.” That “shall not be infringed” is strong language and perfectly clear. To infringe is to trespass, to intrude, to encroach. “Shall not be infringed” in plain language means “No Trespassing.” And it is the government that is warned to keep out.
That the said Constitution shall never be construed to authorize congress to infringe the just liberty of the press or the rights of conscience; or prevent the PEOPLE of the United States, who are peaceable from keeping their OWN arms. – Samuel Adams
The First Amendment protects the people’s freedom of religion, speech, press and assembly. Why would they immediately afterward add to this list a state’s power to form its own militia? It is more than abundantly clear that the framers and founders of America intended to protect the long-held, common law, pre-existing right of the citizens to own the firearm of their choice to protect themselves against a powerful central government gone awry. Go see the U.S. Department of Justice’s Statement On The Second Amendment, which clearly dispels the all too prevalent myth that the Second Amendment only gives the power to states to form and train state-controlled militias.
George Washington wrote that the American Founding occurred during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” Our current debate about the Second Amendment makes it all too clear that that better understanding and clearer definition of our rights has been slip-sliding away during the period in which you and I live.
The deep state actors are intent on creating their new world order and repealing the 2nd amendment is a top priority. At that point, they can proceed with the same manner of disregard to our rights as they have with the first amendment by censoring conservatives and truth.
The Second Amendment does not give anyone a right to own a gun. Instead, it really acknowledges the pre-existing right of firearm ownership and guarantees that the government of the United States cannot enact legislation that denies or infringes upon this right.
The fact is that without the Second Amendment and an armed and free citizenry, all other rights could be subject to erosion and destruction. The Right to Keep and Bear Arms is the ultimate check and balance on the power of government. The Second Amendment guarantees that the entire Constitution will remain intact. The Founding Fathers knew that government is changed by either the voting booth or the firearm, and they made sure that both would always be available to the Citizens of the United States.
“The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops…” – Noah Webster, An Examination of The Leading Principles of the Federal Constitution, Philadelphia 1787
Supreme Court Decisions
U.S. v. Cruikshank (1876)
Cruikshank was the first Second Amendment case to reach the Supreme Court. Cruikshank is occasionally misconstrued as deciding the Second Amendment does not confer an individual right to keep and bear arms.
Among the counts against Cruikshank et. al. were charges to deprive two blacks their First and Second Amendment rights. Regarding the First Amendment charges the court stated:
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government… It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection…The first amendment to the Constitution prohibits Congress from abridging “the right of the people to assemble and to petition the government for a redress of grievances.” This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone…
…For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
Similarly regarding the Second Amendment violations the court wrote:
The second and tenth counts are equally defective. The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called…”internal police”
In brief, following precedent, the court stated the Bill of Rights only applied as a limitation on the “National government.” Individuals could not file charges against other citizens in federal court regarding violations of their constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.
Presser v. People of Illinois (1886)
Herman Presser was found guilty of parading a group of armed men without authorization in the state of Illinois. The defendant had tried to claim this was unconstitutional and violated his Second Amendment rights as well. The court ruled the states have the power to control and regulate military bodies, including drilling and parading activities. Though the court stated Second Amendment issues were not involved, it re-affirmed that it applied as a limitation only on the national government. However the court then stated:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the General Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view [the Second Amendment] prohibit the people from keeping and bearing arms, so as 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.
Thus the Presser court wrote that the right to keep and bear arms existed, independently of the Second Amendment, for “all citizens capable of bearing arms” and the states could not infringe upon this right.
Miller v. Texas (1894)
Franklin Miller, convicted of murder, on appeal, claimed his Second and Fourth Amendment rights had been violated under the Fourteenth Amendment. The court upholding the conviction, reaffirmed Cruikshank v. U.S. and stated: “And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.” In other words the court wouldn’t even consider whether Miller’s rights had been violated under the Fourteenth Amendment because he had not filed such a claim in his original trial.
U.S. v. Miller (1939)
Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. The Miller court decided the following:
- The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.
- “In the absence of evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length,’ which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision.”
- “It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense.”
- “The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia.”
As noted in the Summary section, Miller has often been mis-cited. Note that in the entire text of Miller, neither the words “state militia” nor “National Guard” are to be found.
Regarding item 4) above, the Miller court defined the Militia as the following:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.
The Supreme Court reversed and remanded the case back to the district court, giving the defendants a chance to provide evidence that a short-barrelled shotgun could contribute to “the efficiency of a well-regulated militia.” Note Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.
The defendants had not appeared for their Supreme Court hearing and they had no legal representation as well! In its brief the U.S. government argued the “collective rights” theory. (See GunCite’s rebuttal to the U.S. government’s brief.)
More importantly please read how the Miller case has been mis-cited by some federal courts and see how some rulings are simply based on judges own feelings, desires, and values rather than the rule of law and valid evidence.
Lewis v. U.S. (1980)
Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court “for breaking and entering with intent to commit a misdemeanor”. In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.
The court upheld Lewis’ conviction, holding:
(a)…the fact that there are remedies available to a convicted felon – removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury’s consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding – suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress’ purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473.
In a footnote the court stated:
These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia”);
Note, the court restated the Miller court’s focus on the type of firearm.
The court also commented it was customary to deny convicted felons the right to vote, hold union office, or practice medicine.
Burton v. Sills (1985)
From Stephen Halbrook’s “That Every Man be Armed: The Evolution of a Constitutional Right”:
A…striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state’s gun-control law, which imposed restrictive requirements. Conjuring up an image of “political assassinations, killings of enforcement officers, and snipings during riots,” the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to “the active, organized militias of the states,” that is, the National Guard. The court’s very use of these adjectives to modify the word “militia” ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.”. . . “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const. Amdt. I (“Congress shall make no law … abridging … the right of the people peaceably to assemble”) …. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, refers to a class of persons who are part of a national community. . . .”
Chief Justice William Rehnquist
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)
Chronological History of Events Related to the 2nd Amendment
Federal Judge Orders City Of L.A. To Pay NRA $150,000 After Retaliation Against Contractors With Ties To Gun Group