Streams

The Second Amendment: Controversial, Volatile, and Misunderstood

Tuesday, August 19, 2014

Guns Second amendment Second Amendment supporter and gun enthusiast Shade Haddox displays an unloaded rifle being sold in an impromptu auction across the street from a gun buy back program in Dallas, TX, Jan 19, 2013 (Tom Pennington/Getty Images/Getty)

The Second Amendment was written to calm public fear that the new national government would crush state militias made up of adult men—who were required to own a gun to serve. In the 20th century, with Prohibition and the rise of organized crime, the first federal gun control laws were passed. Decades later, the debate over our right to bear arms involves wrestling over the meaning of the Second Amendment. Michael Waldman, president of the Brennan Center for Justice, discusses the history of the Second Amendment and argues that it's been misinterpreted. His book The Second Amendment: A Biography, he shows that our view of the amendment is set not by the constitutional text, but by the political advocacy and public agitation, led by the NRA.

Guests:

Michael Waldman

Comments [20]

bob

‘No Way To Prevent This,’ Says Only Nation Where This Regularly Happens

http://www.theonion.com/articles/no-way-to-prevent-this-says-only-nation-where-this,36131/

Aug. 20 2014 05:18 PM
RUCB_Alum from Central New Jersey

@CaptainDrG

Your 'Mass Shootings' argument pre-supposes that any nut who wants to can get their hands on a gun to commit a mass killing event. Why is that? Don't you think every citizen being armed would create more mass murder incidents rather than fewer? Let alone collateral damages...

Aug. 19 2014 01:57 PM

2nd Amendment annotated: A well regulated Militia,
["well regulated" meant: properly functioning.
A well regulated clock was properly adjusted.
A well regulated militia was well trained, but was not the government militia.
"militia of the United States consists of all able bodied males... (c) ...the unorganized militia, which consists of the members of the militia who are not members of the National Guard or Naval Militia." 10 US Code §311
The well regulated militia is the unorganized militia.]
being necessary to the security of a free State,
[the reason for the right]
the right of the people
[“people” throughout the Constitution, means all the individuals. When the drafters wanted to refer to the United States, or to the States, they used those terms. So this is not a State’s right. It is the people’s right. This "people" is also distinguished from the communist use of "People", which means the leadership of the ruling Communist Party.]
to keep and bear Arms, shall not be infringed.
[The First Amendment says: “Congress shall make no law...” But the 2nd Amendment just says, “shall not be infringed.” So no government, Federal, State, nor local can “infringe” the right, “to keep and bear Arms.”
In modern terms:
A population equipped and trained to effectively use arms, being necessary to the security of a free State, the right of the individual people to keep and bear Arms shall not be infringed.

Aug. 19 2014 01:54 PM
Truth & Beauty from Brooklyn

Sorry, RUCB_Alum from Central New Jersey, but we have replaced the militia with the military. And even they should not "own" their weapons, but should be issued weapons and ammunition for duty purposes and return them at the end of their shifts. Same with police. That would prevent many of the murder/suicides committed by officers who take their guns home.

In any event, the spate of mass shootings that have occurred over the years because of private citizens owning guns is inexcusable. Unfortunately, most people won't learn that lesson until they lose a member of their own families (G-d forbid).

Aug. 19 2014 01:53 PM

Communal? Sullivan was a gang leader.
Tammany Hall was a band of public thieves.
I guess a criminal gang is a form of commune.

Aug. 19 2014 01:49 PM

Sullivan Law of 1911, which required pistol licenses, had several things to going for it:
1. Sullivan represented a dock district, and many of his constituents were muggers. Sullivan was leader of a notorious Irish gang. Their criminal work was impeded by the fact that citizens were arming themselves before going to that bad neighborhood, thereby making robbery a dangerous business. Sullivan wanted to protect his criminal constituents from armed victims, and his law has made New York safe for robbers ever since.
2. Tammany wanted to disarm Italians and blacks. The law served the same racist purposes that gun control served in Dixie: to disarm disfavored races. That's why the pistol licensing agent has unbridled discretion to discriminate under the Sullivan Law.
3. Tammany Hall wanted to be able to arrest political opponents.
4. Sullivan was crazy anyway, and soon was committed to an insane asylum. He eventually committed suicide. The law is as insane as he was.

The law was passed about 1911, and has protected NY muggers from their victims since then.

Aug. 19 2014 01:44 PM
Joe Mirsky from Pompton Lakes NJ

The Second Amendment "has been the subject of one of the greatest pieces of fraud—I repeat the word 'fraud'—on the American public by special interest groups that I have ever seen in my lifetime.”
— Warren E. Burger, conservative Chief Justice of the Supreme Court 1969-1986, MacNeil/Lehrer NewsHour, December 16, 1991.

Aug. 19 2014 01:44 PM

Mass Shootings stopped
The average number of people killed in mass shootings, when stopped by police, is 14.29 dead.
The average number of people killed in a mass shooting, when stopped by a citizen, is 2.33 dead.
The average number of people killed in a mass shooting, when stopped by an unarmed citizen is 2.6 dead.
The average number of people killed in a mass shooting, when stopped by a citizen with a gun is 1.8.

So the best way to prevent mass shootings with many dead, is to enable armed citizens to be in most crowds.
This is best accomplished by allowing the law-abiding to carry guns.

http://dailyanarchist.com/2012/07/31/auditing-shooting-rampage-statistics/?fb_action_ids=580879268592752&fb_action_types=og.recommends&fb_source=aggregation&fb_aggregation_id=288381481237582

Aug. 19 2014 01:42 PM
Joe Mirsky from Pompton Lakes NJ

The Wild West
Ordinance No. 9, Tombstone, Arizona
“To Provide against Carrying of Deadly Weapons” (effective April 19, 1881).

Section 1. “It is hereby declared to be unlawful for any person to carry deadly weapons, concealed or otherwise [except the same be carried openly in sight, and in the hand] within the limits of the City of Tombstone.

Section 2: This prohibition does not extend to persons immediately leaving or entering the city, who, with good faith, and within reasonable time are proceeding to deposit, or take from the place of deposit such deadly weapon.

Section 3: All fire-arms of every description, and bowie knives and dirks, are included within the prohibition of this ordinance.”

You could carry weapons into town, but you had to check them at the Grand Hotel or the Sheriff’s office.

In 1994 the Arizona state legislature passed a law allowing carrying concealed weapons, superseding the Tombstone Ordinance. In 2010, a new law allowed concealed carry without a permit.

Aug. 19 2014 01:41 PM

Well-Regulated Militia
In the late 1700s, the meaning of "well regulated" meant properly functioning. A well regulated clock was properly adjusted. A well regulated militia was well trained.
There were two types of militia:
1. The King's Militia, a.k.a. select militia, organized militia, state militia, government militia; and
2. The unorganized militia, a.k.a. well regulated militia, people's militia.

Aug. 19 2014 01:41 PM

Thanks for mentioning the Federalist Papers; not just Madison but Hamilton wrote them (along with Jay, but he was more on foreign affairs). We need to look at them again. The notion of a Swiss-style citizen army is more geared to a rifle - on the mantelpiece - and unfortunately the handgun is the more problematic "piece" all over our society, all too easy to conceal before the commission of a crime. Maybe if we let/made a rifle compulsory and banned hand-guns, we'd have a safer society, and placate the "gun lobby"?

Aug. 19 2014 01:39 PM

NY law today says the militia is almost every man:
Militia - law regarding the "well regulated" aka "unorganized" militia
"The unorganized militia shall consist of all able-bodied male residents of the state between the ages of seventeen and forty-five who are not serving in any force of the organized militia…who are…citizens…." 36 NY Consolidated Laws Art. I Military Law § 2 (2)

Aug. 19 2014 01:38 PM
Rick Pettit from East Village

What about that phrase "a well regulated militia…"?

Aug. 19 2014 01:37 PM
RUCB_Alum from Central New Jersey

The history of the original amendments is more interesting to me than the Second Amendment - which if you follow the words, makes any restriction on personal gun ownership unconstitutional. The Second Amendment will need to be re-amended, but absent some horrific event that's not going to happen.

The passage and non-enactment of Article the First is more important to me.

Aug. 19 2014 01:36 PM

Federal law today says the militia is almost every man:
10 US Code §311 is similar:
"(a) The militia of the United States consists of all able bodied males at least 17 years…and under 45 years of age who are…citizens….
(b) The classes of the militia are-…
(c) ...the unorganized militia, which consists of the members of the militia who are not members of the National Guard or Naval Militia."

Aug. 19 2014 01:36 PM
RUCB_Alum from Central New Jersey

Sorry, T&B from Br'klyn, the *military* is NOT the militia. Militia are citizen-volunteers. They are supposed to drill regularly and be ready to fight in a moment's notice. Not even the National Guard qualifies.

Aug. 19 2014 01:26 PM
Peg

In my neck of the woods, many neighbors believe that the right to bear arms specifically refers to an idividual's right to self defense. Most of them have not read the second amendment, but even those who have, interpret it to mean right to self defense and they have little interest in serving in a militia. They want to own a gun for their personal and property protection - some want to carry off their own property for continuous personal protection.

Aug. 19 2014 01:26 PM
Truth & Beauty from Brooklyn

I believe in the Right to Arm Bears.

Apart from that, citizens who participate in our militia - i.e., the Armed Forces (Army, Navy, Airforce, Marines, Coast Guard) - may bear arms while in service. Anyone else who wants to own a gun should be permitted exactly one (1) musket and one dozen (12) musket balls. Period.

Aug. 19 2014 01:09 PM
RUCB_Alum from Central New Jersey

According to the WikiPedia article on the Second Amendment the version passed by Congress is punctuated differently than the version passed by the states and authenticated by Thomas Jefferson, the Sec'ty of State at the time. With or without a few commas the amendment can have vastly different meanings. There has been a lot of time wasted in arguing whether the amendment refers only to citizens in organized militias can keep and bear arms or everyone can. [The same wording issue is true for the passed but un-enacted Article the First (congressional apportionment). The version passed by Congress is worded exactly the opposite of the wording passed by the states and thus there is some doubt over what exactly the amendment means.]

Doesn't matter to me. Militias are made of citizens and these citizens must be armed in order to be an effective militia. (Does anyone think that any number of armed citizens could stand against a modern army - with air support, tanks, drones, etc.? Really? Therefore the only modern sense in which the 2nd Amendment can protect the citizenry from government only enables assassination and gunfights with law enforcement. Armed citizens will always lose eventually.)

The 'right of the people to keep and bear arms' to me means everyone. Therefore, laws that restrict carry are unconstitutional. And it is only a matter of time before SCOTUS calls it that way.

My problem is that I don't want to live in a country where every one has the right to carry a lethal firearm. The Second Amendment itself needs to be re-written so that only citizens who have passed firearms training and will use the arms legally can own can keep arms and the right to bear them is heavily restricted by local governments but what chance would a new amendment have of passing?

Aug. 19 2014 12:27 PM
Joe Mirsky from Pompton Lakes NJ

Original Intent

“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.” — Second Amendment.

“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..."
— James Madison, I Annals of Congress 434, June 8, 1789

Madison said in Federalist Paper 46 that a standing army could only have 25-30,000 men with the population of the country at that time, but that “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.”

“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
— Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789

“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 one religiously scrupulous of bearing arms shall be compelled to render military service in person.“
— Draft version of the Second Amendment sent by the House of Representatives to the United States Senate, on August 24, 1789.

“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.”
— United States v. Miller, Supreme Court decision 8-0, May 15, 1939

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
— District of Columbia v. Heller, Supreme Court decision 5-4, June 26, 2008

I'm amused by the notion that if you have to register your guns, the government will take them away. The government can just make them illegal so you can't use them. Do you think the police will be on your side?

Aug. 19 2014 09:36 AM

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