The Second Amendment to the U.S. Constitution:
What It Actually Says and Means
Knowing What It Actually Says and Means, and Establishing Reasonable Laws, Regulations and Prevention and Intervention Programs Would Greatly Reduce Gun Violence and Mass Murder In America
(Posted 10-6-2015 -- Edited 10-11-2015)
The premise of this article is that America must establish needed arms controls and sufficient regulations, laws and law enforcement to deal with problems regarding the wrongful and illegal use of guns, but in order to do so we need to dispel the false interpretations of the Second Amendment that have prevented us from implementing any meaningful, effective solutions to the horrible problems involving gun violence and murder by people using guns.
However, arms control and regulations are not enough. We also need to establish educational prevention and intervention programs, which would include: helping people identify red flags in the behavior and attitudes of troubled individuals; and providing better and more gang prevention programs targeting at-risk youth; mandatory teacher and peer reporting of individuals with odd and suspicious behaviors; and mandatory followup of school officials and local government officials to ensure that investigations are carried out and needed psychological treatment is provided.
The problem is that there is a huge obstacle in America preventing any meaningful progress toward accomplishing these solutions. That obstacle enables mentally ill and mentally unstable people, as well as gangsters and criminals, to buy any kind of guns and arms they want. And we must deal with that obstacle with truth, facts, and reason.
The obstacle is those who oppose gun control and arms regulation, and the problem is that they justify themselves by invoking the Second Amendment of the U.S. Constitution even though they do not know what the Second Amendment actually says and means. They justify themselves by citing the last part of if, but they misinterpret and even distort the crucial first part and thus fail to understand its full meaning.
Therefore, they, and everyone else concerned, should learn that part of the reason James Madison wrote the Second Amendment of the Constitution mainly to assure his constituents in Virginia and the Southern states in general, that Congress would not be able to use its new constitutional powers to disarm local state militias — which plantation owners in the Southern states relied upon for slave control and dealing with escaped slaves. However, while that was one of the main reasons for the Second Amendment, it was also about militias in general, which you shall see.
There is a great deal of historical evidence to indicate that was the case, including the prior debates and discussion held between James Madison and others at the Constitution Ratifying Convention in Richmond, Virginia in mid-1788, and also reflected in the First Congressional Record.
That, in fact, is why the Second Amendment regarding militias and bearing arms was ratified by the States, and authenticated by Thomas Jefferson, then-Secretary of State.
The Second Amendment states: “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.”
It expresses what it really means. It acknowledges that the people have the right to bear arms, and it declares that the right must be respected so that the people can belong to a well regulated state militia that can act in cases of emergency. And that was confirmed by the fact that during the debates over the Second Amendment, none of the participants mentioned a private right to bear arms for any purpose other than belonging to an organized, well regulated militia.
Confusion over the meaning of the amendment can be cleared up by the understanding that “the right of the people to keep and bear arms” was prior, existing common law, which had not been legislated but had been established by arbitrary judicial precedent and tradition. Therefore, the Second Amendment did not establish that right. It established that a well regulated militia is necessary, and declared that the pre-existing “right” to bear arms established by common law tradition shall not be infringed or violated by government.
That is crucial information to counter the false claims made by right-wing zealots who oppose laws and regulations controlling guns. The Second Amendment makes no mention of any regulations and does not forbid them. Reasonable rules and regulations about arms and weapons agreed upon by the majority would be constitutional. They would not infringe upon the right of the people to keep and bear arms. Furthermore, they would be consistent with the actual intent of the prevailing opinions about the Second Amendment in 1788 and 1789, which were about government's legislative authority regarding well regulated militias.
It follows that government laws and legislation regarding arms, especially in this day and age, would certainly be constitutional and consistent with the Framers’ intent — which is to determine such things by legislative authority reflecting the will of the people. And since they wanted well regulated militias, it follows that they would want the sale and ownership and use of weapons well regulated as well, for reasons of safety, fairness, etc.
Considering the transcripts of the Constitutional Ratifying Convention of 1788 that intent intent is reflected in the words of James Madison, who said, speaking of militias, that “no armies shall be kept without the legislative authority; that is, without the consent of the community itself.” He was arguing for the necessity of government to be able to use force when needed, and since they wanted to try to avoid the need for having professional standing armies, he said: “the only possible way to provide against standing armies is to make them unnecessary. The way to do this is to organize and discipline our militia, so as to render them capable of defending the country [or states] against external invasions and internal insurrections.”
Madison also said: “... the Southern States are, from their situation and circumstances, most interested” in having the power of protecting their members. He also said: “the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States. They might make use of them to suppress insurrections, quell riots, &c., and call on the general government for the militia of any other state, to aid them, if necessary.”
But again, the historic record shows clearly that the idea of a “right” for individuals to bear arms for hunting and self-protection does not come from the Constitution. It stems from prior British common law tradition that existing in America prior to the U.S. Constitution being written. Moreover, the American tradition about bearing arms was also influenced by the text of the British or English Bill of Rights of 1689 that includes language protecting the right of English subjects against disarmament by any royal monarch.
However, in spite of all the historic facts, today many right-wing Americans claim the Second Amendment was based entirely on English common law and the amendment is just poorly worded and easy to misinterpret. But they fail to understand that it merely acknowledged existing common law tradition but is actually about militias.
Ironically, their confusion and argument is not new and it was cleared up in 1876 when the U.S. Supreme Court ruled that the Second Amendment does not establish the right to bear arms, and the assumed right was based on British common law tradition which was continued in America. And again, common law is not established by a legislative process, but is rather established by precedents set by the arbitrary rulings of judges.
Still, many right-wing Americans have misunderstood and have made the same argument before. Consequently, the U.S. Supreme Court has made many other rulings about it, most of which recognize the real meaning, while more recent rulings are clearly at odds with the real meaning and intention of the original Second Amendment..
Why the Second Amendment Is Misinterpreted and Misunderstood
The original state militia idea had been created by the desire for Southern states to establish and use state militias to catch escaped slaves and fight abolitionists who helped slaves escape. However, within one generation after the Constitution was written that idea diminished. After the Civil War the militia ideas gradually began to loose favor, since the U.S. Military had been increased and more organized.
State militias did continue, however. But after the Spanish-American War Congress reformed and regulated the training and qualification of state militias. Then in 1903 the predecessor to the modern-day National Guard was formed, and states were required to divide their militias into two sections, a "National Guard" and a "Reserve Militia."
Since then, most gun regulation has taken place at the state and city level. But then, in 1939, the U.S. Supreme Court upheld the nation’s first national gun law, the National Firearms Act, which put reasonable limits on sawed-off shotguns and machine guns and any other guns that had no “reasonable relation” to “a well-regulated militia.”
That understanding was accepted by the U.S. Government until Ronald Reagan became president.
That was because Ronald Reagan was supported and influenced by a National Rifle Association (NRA) that had recently been taken over by gun zealots. In 1980 the NRA had endorsed Reagan and supported his campaign, and when he was nominated the Republican platform opposed gun registration and gun controls. Ever since then, right-wing Reaganites have steadfastly opposed any gun control legislation, claiming that individual citizens can own any arms, even a bazooka if they want to, as a “right guaranteed by the Second Amendment.” But they are ignorant of, or simply ignore and deny, the real meaning of the amendment.
Then, to make matters much worse, in 2008 a Reaganite Republican-dominated Supreme Court ignored long standing precedents and threw out two centuries of law, and instead ruled that gun-control laws are unconstitutional under the Second Amendment. It was a gross violation of the Constitution, and an example of wrongful “legislating from the bench.”
Unfortunately, since then, and despite the increasing gun violence and mass killings, the NRA and the Reaganite Republicans have fought against any kind of regulation of guns and arms, claiming that it would violate the Second Amendment – even though that claim is utterly false.
That is why the 2008 U.S. Supreme Court ruling on arms regulation and control must be repealed or overturned. After all, bad Court rulings like that have been overturned before, and it must be done again, because as has been explained above, it is not based on the history or the real meaning of the Second Amendment.
Furthermore, widely accepted common law is that individual citizens can use personal arms only for hunting, or only in self-defense, or only to protect their lives or their families lives, or protect their home from invasion by criminals. (And as statistics have shown, guns owned and kept in the home are most likely to be used against a family member or friend, rather than against a criminal.)
Therefore, to further understand why the Second Amendment was established, we need to know that as it was developed there was a very consistent thread in all the proposed versions because everyone concerned understood that "bearing arms" was synonymous with "military service." And so now, even though it is reasonable that individuals should be able to own hand guns, rifles and shot guns used for hunting and for protection of human life, property, pets and livestock, the false idea that it was "authorized" by or even mentioned in the Second Amendment is fraudulent.
Furthermore, neither the Second Amendment nor common law grants permission to individuals to own and use any kind of weapon they want. It is absurd to claim that the Second Amendment or common law was meant to approve individual ownership and use of weapons like military assault rifles, rocket launchers, hand grenades and other weapons made for killing large numbers of people and destroying, houses, buildings, structures, etc. And yet the Second Amendment is falsely being cited by gun and arms zealots as justification for owning such weapons of mass destruction, and they deceive the American public.
Crazy ultra-right-wing anti-government gun zealots and “survivalists” misled by hatemongers and fearmongers belong to groups that have armed themselves to the teeth. And some of those groups are on the FBI’s list of “Christian Identity” groups which are among the worst and most deceptive. And the leadership of the National Rifle Association (NRA) are also deceivers that exacerbate the problem.
The National Rifle Association (NRA)
The fact is that many in the NRA leadership are motivated not by "patriotism," but by greed.
Some of the NRA leadership and other ultra right-wing groups fight any regulation of guns because gun control might make it less profitable for business. After all, the NRA’s current Nominating Committee includes the chief executive of “Freedom Group,” which manufactures Bushmaster military-style assault rifles, Remington Arms, and Defense Procurement Manufacturing Services Panther Arms, and also on the committee is a licensed federal military firearms dealer.
Furthermore, since 2005, the gun industry and its corporate allies have given $52.6 Million to the NRA through the NRA Ring of Freedom sponsor program. The NRA also made $20.9 Million from selling advertising to gun companies in its many publications in one year recently, according to the IRS. Additionally, firearms and ammunition manufacturers, including Remington Outdoor, Smith & Wesson, Sturm Rugar, and Olin (Winchester Ammunition), give the NRA millions of dollars regularly, which reveals that the NRA is really in it for the money.
Anti-government gun zealots who want to be armed to the teeth either are not aware of that, or they don’t care. They focus entirely on the little phrase about the people's "right to keep and bear arms," taking it out of context and simply ignoring the context in which it was written, and ignoring the real origin and intent of the Second Amendment.
Furthermore, a big part of the problem is that many ultra-right-wing groups distort the Second Amendment so much that they insist it was designed to give the people the right to have full military capability to overthrow the government.
However, in spite of what anti-government zealots think, that is not what James Madison and the other Founders had in mind in the Second Amendment and the Constitution in general. In fact, they wrote Article 5 of the Constitution precisely so that the people can alter and reform their government legally when needed (as is explained in the article on The 21st Century Declaration of Independence).
Of course, the NRA and those who are against gun control also cite Scott v. Sandford, the 1857 Dred Scott case in which the Supreme Court ruled that free citizens would have “the right to keep and carry arms wherever they went.” And Chief Justice Taney’s ruling included a statement saying: “Nor can Congress deny to the people the right to keep and bear arms ...”
The claim made by NRA types is that the 1857 ruling was based on the Second Amendment, but it was not. It was based on common law carried over from England, not on the Constitution. And that view was also expressed in 1876 in United States v. Cruikshank wherein the Supreme Court held that the right to arms were not rights granted or created by the Constitution, because they were assumed rights that pre-existed the Constitution.
Therefore, the claim that the Second Amendment gives people the right to own and carry any kind of weapon they want is not merely absurd. It is not constitutional and the Second Amendment does not justify it. Neither does common law, and common law regarding the ownership and use of arms must be reviewed and modified to deal with the current situation.
The question Americans must answer are these: What arms should the old assumed right to “bear arms” allow civilian citizens to own and keep in their homes in these modern times? And shouldn’t we the people determine how they should be regulated to prevent the escalating loss of life due to the lack of regulation and lack of proper gun controls?
How Do We Establish Laws That Deal With Gun Violence and Mass Murders?
Gun control laws and regulation are sorely needed, which has become more and more painfully obvious in recent years, which is why the bulk of this article addressed why Americans need to realize that they have been misled by those who object to it.
Of course there was The Brady Bill, enacted in 1994, which mandated federal background checks on firearm purchasers in the United States. However, it is largely ignored. And even it was passed only after much partisan objections from Republicans, who were finally shamed into passing it because it was endorsed by James Brady, who was in the Reagan administration and was shot during an attempted assassination of President Reagan in 1981. But since then partisan politics regarding guns have gone against sane control and regulation. (See this Washington Post article on gun politics and this one on the history of gun legislation.
However, as mentioned at the top, gun controls and regulations are not enough.
To deal with the problem of mass killings by mentally ill and deluded gunmen there are several fronts that we must act from -- including:
1) education in identifying red flags in the behavior and attitudes of troubled individuals;
2) prevention and intervention programs, including better and more gang prevention programs targeting at-risk youth;
3) mandatory teacher and peer reporting of individuals demonstrating odd and suspicious behaviors;
4) mandatory followup of school officials and local government officials to ensure investigations are carried out and needed psychological treatment is provided; and
5) the restoration and expansion of state hospital programs for the mentally ill.
The fifth step is necessary because ever since Ronald Reagan was Governor of California and turned mentally ill people out of state hospitals and out on the street if they could be deemed “not a danger to themselves or society,” states all across the nations have followed suit. The problem is that the trend was based on cutting human services and further cutting taxes for the wealthy. And that is why we have seen so many mentally ill homeless people running into trouble.
The first four steps are necessary because many mass murders have no official history of mental illness, and they obtained their guns legally. That's why even though focus must be on establishing sane and effective gun control laws and regulations, focus must also be on prevention and intervention programs, education and reporting to identify potential offenders, and psychological treatment to help them deal with and heal their tortured minds.
Of course, peer reporting would have to be established with the provision that false or malicious accusations would be punished in some way, to ensure that the peer reporting expresses genuine concerns and serves as a helpful lead that can enable counselors and psychologists to tactfully approach and help troubled people. And if done correctly, this may very well intervene and prevent a troubled person from acting out in harmful or violent ways.
Studies show that for every dollar invested in prevention and intervention programs, about four dollars are saved in the costs of law enforcement, the criminal justice system, and the penal system. And there are proven programs with best practices, some of which have turned around the lives of poor minority youth and turned them away from gangs, some of which have treated troubled youth and bullied youth and given them understanding and the tools to cope, and some of which have served to identify and treat those with a potential to harm themselves or others. The trouble is, many of those programs are grossly underfunded, and many have been terminated because of lack of funding.
If we the people bring about a Reformation of Government so that it become a government that is actually of the people, by the people, and for the people, we can establish these sane and productive measures.
But it is up to you. Looking for conquering heroes only gets us pretenders to the throne. See The 21st Century Declaration of Independence. That suggests a plan and framework for reformation, and one of its action agenda items is reforming the U.S. tax codes and laws to make them fair.
As America’s Founders like Thomas Jefferson and James Madison advocated, tax rates should be progressive, and the rich should pay taxes according to their ability to pay, while the poor should pay very little or nothing in taxes. That would be fair, because as it is, the American tax system is grossly unfair.
After all, two-thirds of American corporations making $2.5 Trillion in sales over the last several years paid no federal income taxes. The average effective tax rate of the richest 400 households, who are Billionaires and Multi-Billionaires, was only 16.6 percent. The wealthiest one percent of the population is about three million people, and most of them were paying, and still pay, as little as 7 percent (less than the working poor pay) because of all the "welfare for the rich" like tax loopholes, tax shelters, subsidies, deductions, etc., and most Billionaires manage to get away with paying between 7 and 17 percent of their income in taxes.
Before Reaganism infected America, the wealthiest few paid about 70 percent of their income in income taxes. That’s what it should be, since before Reaganism there were only 13 Billionaires whereas now there are about 460 and growing as the Plutocracy grows stronger. But even 50 percent would be a little more reasonable, and that would be more in line with what the wealthiest few in Europe pay.
If the U.S. treasury were properly funded, we could afford many needed things, programs and services, including the following.
Proposed Arms Regulations
1) Lawful ownership of handguns and manual and semi-automatic hunting rifles and shotguns by private citizens shall still be permitted, as long as they are registered with the federal government and the government in the owner’s home state of residence.
2) All guns and their owners must be registered. If any state fails to implement their own gun ownership and registration programs after being given a reasonable time to do so, the federal government shall ensure compliance in non-compliant states.
3) All gun registrations must be associated with a ballistics test on file so that guns may be traced back to the registered gun owner, and both ballistics and registration information shall be shared on a nationwide database with all concerned law enforcement, investigative and intelligence agencies.
4) After a grace period for all law-abiding gun owners to register their guns, possession of an unregistered gun shall be a crime, and the weapon shall be subject to immediate confiscation. If any gun is stolen, the owner must report the theft promptly to the registration agency.
5) No person may acquire ownership of a gun without a background check, and all gun transfers or sales transactions must be performed by a licensed gun dealer who would register the gun if it is not already registered;
6) Private citizen ownership of military-type assault rifles, fully automatic rifles, other military weapons such as hand-grenades, grenade launchers, rocket launchers, land mines, surface-to-air missiles, or any other operational military weapons shall be prohibited. All such weapons must be turned over to state or federal collection agencies, and after a sufficient time period allowed for the surrender of such weapons, private possession of such weapons will be illegal and subject to criminal action. The federal government shall compensate owners of such weapons if owners have a sales receipt or proof of inheritance, and the compensation will be determined by the age of the weapon, with the maximum compensation limited to 40 percent of the estimated value or purchase price.
7) There shall be no private transfers or sales of guns, and no immediate sales at gun shows or online. Online sellers and gun show sellers must be licenced gun dealers, and after a mandatory grace period the buyer may take possession of the gun from a local gun dealer near the seller so the transaction, registration and ballistics processes can be completed by the gun dealer. All transfers or sales of guns must go through a licensed gun dealer who would register the gun if it is not already registered. If a private party wants to transfer or sell a gun to another private party, licensed gun dealers must facilitate the transaction for a modest consignment fee as a condition of their right to be a licensed gun dealer.
Item seven is necessary because there are some sales at gun shows that are under the table, and there are some unscrupulous online gun dealers.
The missing part of any such regulations is of course the private sale of guns by criminals to criminals, and of course we can do little or nothing about that without greater and sufficient law enforcement. After all, we don't want the police breaking down doors and confiscating unregistered guns. But there is still much the police could do if they had the opportunity and funding to do it, because as it is there is insufficient effort to disarm mentally ill people, criminal gangs, phony "militias," radical militant survivalist groups, ultra-right-wing anti-government groups, etc.
The Absurd Argument of Militant Religious Zealots About the "Sword"
Right-wing religious zealots love to quote one sentence of Jesus, about buying a sword. But in fact, Jesus mentioned the “sword” many times, such as when he said “live not by the sword,” when he told Peter to put down the sword even as armed soldiers were coming to arrest Jesus, and when he made it clear it would be the “sword of my mouth” that conquers the beast of Babylon. Only once did he mention owning or carrying a sword, and it is debatable that he actually said that.
According to Luke 22:36 Jesus said that if his followers did not have a sword they should go out and buy one. But then he explained why, and that explanation is very puzzling -- especially in light of all of his advice that we should be non-violent, passive, and peaceful. But Luke 22:37 was written as if it were an explanation of the order to have a sword, and that it somehow related to what "is written" (in Isaiah 53:12), that it must yet be accomplished in him: that he bare his soul even unto death and be numbered among the transgressors, yet bear the iniquities and sin of the transgressors and intercede on their behalf. But that has nothing to do with a sword,
Luke must have misunderstood Jesus about the sword, because verse 37 has absolutely nothing to do with verse 36 that mentions the sword. Moreover, verse 37 indicates that Jesus believed he must fulfill the prophecy in Isaiah 53, but he did not. If you read the article on Isaiah 53, you will see that the true meaning of that chapter is consistent with the rest of Isaiah’s messianic prophecies, which Jesus clearly did not fulfill. They weren’t even about Jesus, even though Jesus may have believed that because he was an anointed one, a Mashiach (Christus or Messiah), his life should fulfill a pattern foreseen by Isaiah, but whether he knew it or not, he was not the one foreseen by Isaiah or Jeremiah or Ezekiel. (For example, Isaiah 7:14 about Immanuel was not about a virgin giving birth, and the child Immanuel actually lived and died hundreds of years before Jesus was born.)
Jesus was indeed an anointed servant of God, and even a Christus and an Avatar for the passing age. In fact, the modern son of man bears the testimony of Jesus, and glorifies him for what he was. But, if you read any of the articles about the modern son of man or messianic servant of God that are listed on the Site Map, you will find the truth about messianic prophecies.