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Bang / Guns
See other Bang / Guns Articles

Title: Is Gun Ownership a Right?
Source: PragerU
URL Source: https://www.prageru.com/courses/pol ... al-science/gun-ownership-right
Published: Feb 27, 2017
Author: Eugene Volokh
Post Date: 2017-02-27 09:33:06 by misterwhite
Keywords: None
Views: 2010
Comments: 20

(Video at link. Transcript follows.)

Does an American citizen have a Constitutional right to own a gun?

Here's what the Second Amendment says: "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."

Now, it once seemed to me like that language only protected state militias and not individuals. Indeed, this is the view held by the four dissenting Supreme Court justices in the 2008 case of District of Columbia versus Heller, a landmark case dealing with gun ownership.

But the more research I did, the more I came to realize that my initial view was mistaken and that the Founders were, in fact, securing an individual right. The five justices who voted to affirm the right to own a gun in DC versus Heller had, indeed, made the correct decision.

Let's look at the amendment one more time.

"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."

We first need to focus on the phrase "the right of the people." Note that the people are the only ones whose right is secured here, not the militia or a state government. This phrase "the right of the people" comes up a few times in the Constitution. For example, the First Amendment refers to "The right of the people peaceably to assemble, and to petition the Government." And the Fourth Amendment secures "The right of the people to be secure...against unreasonable searches and seizures."

Why, then, if the authors of the Constitution felt so strongly about "the right of the people" to own guns, did they include language about "a well-regulated militia"?

These opening words of the amendment might be called a "justification clause." Such clauses are used to help explain why a right is being secured. But it's the operative clause that explains what right is being secured. In this case, the right of the people to keep and bear arms.

And what was the word 'militia' understood to mean at the time?

Well, the Militia Act of 1792 defined "militia" to mean all white males 18 to 45. Today, of course, "militia" would include women and people of all races, but it was clearly not a reference to a small, National Guard-type group.

And what about the part of the amendment that says a militia is necessary "to the security of a free State"? What, the opponents of personal gun ownership ask, does a personal right of gun ownership have to do with that?

Again, historical context is key. In the 1790s, the phrase "free State" wasn't used to mean an individual state like New York or Rhode Island. Rather, it meant what we'd call today a "free country"--a nation free of despotism. A "free State" is what the Framers wanted America to be. They saw an armed citizenry as, in part, a hedge against tyranny. Citizens who own weapons can protect themselves, prevent tyrants from seizing power, and protect the nation from foreign enemies.

This does not mean, though, that this right is unlimited. Free speech, for example, has long been subject to some narrow and reasonable regulations. But severe restrictions on owning a gun, like severe restrictions on free speech, would violate the Second Amendment as the Founders understood it.

Maybe you think this understanding of the Second Amendment is outdated today, that the Constitution needs to change as public attitudes change. The Founders included a provision for doing just that: if the public attitude really has changed, the Constitution can be amended to reflect that change. But, ironically, even if we focus on current public attitudes, the case for individual gun ownership is as strong as ever. Polls consistently show that over two-thirds of Americans believe that the Second Amendment secures the right of citizens to own a gun. And Congress and state governments have repeatedly reaffirmed this view, including in recent decades.

So, does the Second Amendment secure an individual right to bear arms?

It did when it was written. It has throughout American history. And it does today.

I'm Eugene Volokh, Professor of Law at UCLA, for Prager University.

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#1. To: All (#0) (Edited)

"... and that the Founders were, in fact, securing an individual right."

They were securing an individual right for a select group of individuals -- the people -- as part of a militia for which only they were qualified to serve.

Words mean things, but the author is throwing them around as though they mean whatever he says they mean. "The people" weren't everyone. Surprise! They weren't even all citizens. Surprise!

The Founders didn't write, "... the right of every person to keep and bear Arms, shall not be infringed." Nor did they write, "the right of every citizen to keep and bear Arms, shall not be infringed."

They certainly could have. They used those words in other parts of the constitution. But not in the second amendment.

So who were "the people". Simply put, they were those with something to lose. They were the adult, white, male, citizen landowners who were given the exclusive right to vote, to hold land, to run for office ... and to man the militia. Their arms were protected from federal infringement by the second amendment -- for obvious reasons.

misterwhite  posted on  2017-02-27   9:49:43 ET  Reply   Trace   Private Reply  


#2. To: misterwhite (#0)

Why, then, if the authors of the Constitution felt so strongly about "the right of the people" to own guns, did they include language about "a well-regulated militia"?

Because having just gotten rid of the Brits, they were reluctant to permit and empower a "standing army" that could take away their freedom.
That was fine back in the days of single-shot, flintlock muskets... But the sophistication of modern weaponry renders that aspect obsolete...
Nevertheless, the individual right to bear arms remains relevant for personal self defense... However, that should not include weaponry with modern military capabilities.

Willie Green  posted on  2017-02-27   10:06:09 ET  Reply   Trace   Private Reply  


#3. To: All (#0)

"Maybe you think this understanding of the Second Amendment is outdated today, that the Constitution needs to change as public attitudes change."

There is no need to change it. It is what it is -- it protects the citizen militia from federal infringement. And about half the states have a citizen's militia (not the National Guard) as defined by the U.S. Constitution.

The problem is this -- some people want a uniform, nationwide definition and protection of their individual gun rights. So they turn to the second amendment to do that job.

Big mistake. By doing so, five unelected and partisan justices on the U.S. Supreme Court now get to define terms like "arms", "keep" and "bear". And their decisions apply to everyone.

State constitutions protect individual gun rights, not the second amendment.

misterwhite  posted on  2017-02-27   10:06:42 ET  Reply   Trace   Private Reply  


#4. To: Willie Green (#2)

"But the sophistication of modern weaponry renders that aspect obsolete..."

No it doesn't. The second amendment protects all arms deemed necessary by a state militia. All arms.

But that doesn't mean that each militia member takes them home. The larger and more destructive arms are kept in the state armory.

misterwhite  posted on  2017-02-27   10:12:52 ET  Reply   Trace   Private Reply  


#5. To: misterwhite (#0)

It is a GOD given and commanded right.

Christ said, If you don not have guns, sell your clothes and get some.

The response was, Lord here are two guns, He said, cool that's a great start.

Liberal preachers say that is two for the crowd that is so stupid in is laughable. It is two per man.

To all a very merry Christmas and a great 2017.

BobCeleste  posted on  2017-02-27   10:15:25 ET  Reply   Trace   Private Reply  


#6. To: misterwhite (#4)

The second amendment protects all arms deemed necessary by a state militia.

Baloney... The weekend wariors in the National Guard are underfunded and only get the military hand-me-downs that the Feds see fit to donate to them.

Willie Green  posted on  2017-02-27   10:27:25 ET  Reply   Trace   Private Reply  


#7. To: BobCeleste (#5)

"It is a GOD given and commanded right."

Meaning every individual has that right?

misterwhite  posted on  2017-02-27   10:33:56 ET  Reply   Trace   Private Reply  


#8. To: Willie Green (#6)

"The weekend wariors in the National Guard are underfunded and only get the military hand-me-downs that the Feds see fit to donate to them."

I'm not talking about the National Guard. I'm referring to the State Militias (State Defense Forces).

And I don't care about the arms they have. I care about the constitutional protection of the arms they require.

https://en.wikipedia.org/wiki/State_defense_force

misterwhite  posted on  2017-02-27   10:40:04 ET  Reply   Trace   Private Reply  


#9. To: misterwhite (#8)

I'm referring to the State Militias

You mean like the paranoid kooks in the Michigan Militia?
Heck, those beer belly "patriots" should be arrested and disarmed before they accidently hurt some innocent people.

Willie Green  posted on  2017-02-27   11:14:05 ET  Reply   Trace   Private Reply  


#10. To: Willie Green (#9)

"You mean like the paranoid kooks in the Michigan Militia?"

I gave you a link to the type of militias I was referring to.

misterwhite  posted on  2017-02-27   11:21:07 ET  Reply   Trace   Private Reply  


#11. To: misterwhite (#7)

No, Jesus was talking to His disciples and apostles, not the general public, so it only applies to Born Again Washed in the Blood of The Lamb Christians.

To all a very merry Christmas and a great 2017.

BobCeleste  posted on  2017-02-27   12:32:28 ET  Reply   Trace   Private Reply  


#12. To: misterwhite (#10)

I gave you a link to the type of militias I was referring to.

Good grief, those people don't need weapons to help fill sandbags during floods or picking through the rubble after an earthquake.

Willie Green  posted on  2017-02-27   13:45:00 ET  Reply   Trace   Private Reply  


#13. To: misterwhite (#0)

Is Gun Ownership a Right?

I don't know about right, but it is becoming a necessity to defend yourself from all the nuts, thieves, and parasites running around.

rlk  posted on  2017-02-27   17:00:12 ET  Reply   Trace   Private Reply  


#14. To: Willie Green (#2)

"However, that should not include weaponry with modern military capabilities."

If the intent of owning weapons is to prevent some "standing army" from taking away freedom, why not?

You're confusing personal defense with the second amendment. The second amendment isn't about personal defense. Or target shooting. Or hunting.

The second amendment protects the formation and the existence of a state militia. That state militia protects your freedom from an out-of-control federal government.

The personal use of weapons is protected by your state constitution. Or should be.

misterwhite  posted on  2017-02-28   9:40:00 ET  Reply   Trace   Private Reply  


#15. To: misterwhite (#14)

That state militia protects your freedom from an out-of-control federal government.

Yeah, yeah, yeah...
As if some ragtag state militia is gonna save me from a rogue squadron of M1 Abrams Battle Tanks or Apache Heliocopters...
Good Fuckin' Luck...

Willie Green  posted on  2017-02-28   10:05:06 ET  Reply   Trace   Private Reply  


#16. To: Willie Green (#15)

"As if some ragtag state militia is gonna save me from a rogue squadron of M1 Abrams Battle Tanks or Apache Heliocopters..."

You're missing the point. The purpose of the second amendment is to protect the power of the state militia to acquire tanks and helicopters and any other weapon if they choose to.

misterwhite  posted on  2017-02-28   11:06:29 ET  Reply   Trace   Private Reply  


#17. To: Willie Green (#15)

" ragtag state militia is gonna save me from a rogue squadron of M1 Abrams Battle Tanks or Apache Heliocopters..."

Oh shallow thinker. Those crews have to get out sometime to pee, sleep, perform maintenance, and refuel some time.

Si vis pacem, para bellum

Rebellion to tyrants is obedience to God.

There can be no divided allegiance here. Any man who says he is an American, but something else also, isn't an American at all. We have room for but one flag, the American flag... We have room for but one language here, and that is the English language... and we have room for but one sole loyalty and that is a loyalty to the American people."Theodore Roosevelt-1907.

I am concerned for the security of our great nation; not so much because of any threat from without, but because of the insidious forces working from within." -- General Douglas MacArthur

Stoner  posted on  2017-02-28   13:26:25 ET  Reply   Trace   Private Reply  


#18. To: misterwhite (#16)

The purpose of the second amendment is to protect the power of the state militia to acquire tanks and helicopters and any other weapon if they choose to.

Baloney.... that makes the state militia a "standing army" no different than the federal military.

Willie Green  posted on  2017-02-28   13:26:44 ET  Reply   Trace   Private Reply  


#19. To: Willie Green (#18)

"Baloney.... that makes the state militia a "standing army" no different than the federal military."

Nope. A "standing army" is not defined by the type of weapons it has.

misterwhite  posted on  2017-02-28   13:40:12 ET  Reply   Trace   Private Reply  


#20. To: misterwhite (#19)

But the type of weapons that a standing army has determines whether or not resistance is futile. Therefor the original intent of the 2nd Amendment has become technologically obsolete and useless.

Willie Green  posted on  2017-02-28   13:50:10 ET  Reply   Trace   Private Reply  


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