How the NRA Rewrote the Second Amendment
The Founders never intended to create an unregulated individual right to a gun. Today, millions believe they did. Here’s how it happened.
By MICHAEL WALDMAN, Politico.com
May 19, 2014
“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.
(More here.)
By MICHAEL WALDMAN, Politico.com
May 19, 2014
“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.
Twenty-five years later, Burger’s view seems as quaint as a powdered wig. Not only is an individual right to a firearm widely accepted, but increasingly states are also passing laws to legalize carrying weapons on streets, in parks, in bars—even in churches.
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.
(More here.)
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1 Comments:
there is plenty of evidence from the founders that the 2nd amendment was a guaranteed individual right to keep and bear arms.
First, it is the fact that the 2nd Amendment is part of the Bill of Rights of which all 10 are INDIVIDUAL rights, not collective rights. The bill of rights are there to protect the smallest minority - the minority of ONE individual. It is no accident that the 1st Amendment, 2nd Amendment and 4th Amendment each contain the clause 'the right of the people'. If the 1st and 4th are individual rights, then so is the 2nd.
Second, Hamilton in Federalist 28 explains the need to ensure the citizenry be armed: "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government...The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress."
Third, Hamilton in Federalist 29 explains the meaning of 'well regulated' being "..little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped..". Well regulated means well equipped. The term 'regulated' does not mean what we think of today as 'regulated' in terms of the intent of the 2nd Amendment.
Fourth, Tench Coxe (a Pennsylvania delegate to the convention) wrote an opinion to The Pennsylvania Gazette prior to ratification in 1788 explaining who the militia are: "Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. 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."
Fifth, it was Jefferson who said "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit of the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." So, we should never substitute contemporary meanings of the words of the Constitution, but rather understand the words at the time when the words were written.
lastly, and for a more modern explanation of the 2nd Amendment we can read the opinion of the court from US v Emerson in 1999: "Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized"
the NRA didn't re-write the 2nd Amendment. The NRA confirms the original intent of the amendment against the encroachments of the federal government to restrict it. For if the 2nd Amendment only pertained a collective right to a state sponsored militia, then the 1st Amendment only pertains to quill pens and parchment paper.
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