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Second AmendmentWhat is the truth about this essential pre-existing right? This Page Last Updated 02/26/2014
Not an NRA Member? Shame on you! We would not even be having this conversation on the topic of gun rights in America if it wasn't for the hard work and dedication of the National Rifle Association. You say that you don't have the money??? An Associate Membership (no magazine) is just $10.00 per year, that's less than three cents (-$0.03) each day. Before you do anything else, do your duty and support the NRA through your membership. JOIN THE NRA TODAY. You can save $10.00 on a regular annual membership by using the link I've just provided, making it just $25.00. JOIN TODAY. Bookmarked subjects on the Second Amendment: * Brings you to another page outside this Web site. In Search of the Second Amendment, is by far the very best documentary on the subject of the right to keep and bear arms ever produced in my humble opinion. Get your copy on DVD, by clicking the link or the image of the DVD below.
"It is precisely for the
protection of the minority that constitutional limitations exist.
Majorities need no such protection. They can take care of
themselves."
"We may be
tossed upon an ocean where we can see no land nor, perhaps, the sun and
stars. But there is a chart and a compass for us to study, to consult, and
to obey. The chart is the Constitution."
"Do not
separate text from historical background. If you do, you will have
perverted and subverted the Constitution, which can only end in a
distorted, bastardized form of illegitimate government."
"While some have
argued that the Second Amendment guarantees only a 'collective' right of the
States to maintain militias, I believe the amendment's plain meaning and
original intent prove otherwise."
"Let it
[the Constitution] be taught in schools, seminaries and in colleges; let
it be written in primers, in spelling books and in almanacs; let it be
preached from the pulpit, proclaimed in legislative halls, enforced in
courts of justice. In short, let it become the political religion of the
nation." Is the Second Amendment really correctly taught in school? I seriously doubt it.
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invent against it, conform to the probable one in which it was passed."
"The
framers of the Constitution employed words in their natural sense; and,
where they are plain and clear, resort to collateral aids to
interpretation as unnecessary, and cannot be indulged in to narrow or
enlarge the text; but where there is ambiguity or doubt, or where two
views may well be entertained, contemporaneous and subsequent practical
construction is entitled to the greatest weight." View the full text of the Emerson Decision from the 5th Circuit Court of Appeals. View the full text of the statement on the Second Amendment by the U.S. Department of Justice. The Right To Keep And Bear Arms is probably the most misquoted and misunderstood Amendment to the United States Constitution. On this page I will try to educate the misinformed and eradicate any rumors concerning the intention and meaning of this most essential freedom. "I hope,
therefore, a bill of rights will be formed to guard the people against the
federal government as they are already guarded against their State
governments, in most instances." See my "Quotes" page for many quotes concerning the thoughts and feelings of the Founding Fathers of the United States with specific reference to the right to keep and bear arms. The Second Amendment"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."
Read the Bill of Rights Transcript It is important that the reader view the Second Amendment as it was originally intended. The original meaning of the Second Amendment is an essential concept to grasp when debating what the Founding Fathers had in mind when they wrote it. Again, it is essential that the reader completely understand the intention of the Founding Fathers and their insistence that the right to keep and bear arms play a role in the Constitution of the newly born United States of America. Contrary to declarations by gun-control proponents, an armed citizenry serving as a barrier against any attempt at totalitarian rule by the federal government is precisely why the amendment was included in the Bill of Rights. It is absolutely essential for the reader to completely understand that the Bill of Rights is not a collection of rights granted to the people by the new government of the United States. What they actually were is a compendium of rights that the Founding Fathers believed were inherent rights that already pre-existed the United States of America and were Common Law Rights that belonged to the free people of America. The Bill of Rights are actually self-imposed limits upon governmental power and control over the pre-existing rights of the people, thereby guarding them against any possibility of tyranny in the newly formed Republic. "I hope,
therefore, a bill of rights will be formed to guard the people against the
federal government as they are already guarded against their State
governments, in most instances." "A free people
ought not only to be armed and disciplined, but they should have sufficient arms
and ammunition to maintain a status of independence from any who might attempt
to abuse them, which would include their own government." "The right of
self-defense is the first law of nature; in most governments it has been the
study of rulers to confine this right within the narrowest limits possible.
Wherever standing armies are kept up, and when the right of the people to keep
and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if
not already annihilated, is on the brink of destruction." The Founding Fathers knew, as history has proved, that in order for a government to abuse, dominate and tyrannize its citizens, they must first be disarmed. After all, in the years prior to the start of the Revolutionary War, that is precisely what the British Crown was doing. Indeed, even at the very beginning of the Revolutionary War on April 19, 1775, British troops were attempting to seize stores of arms and ammunition kept by the Massachusetts Militia. Nowhere in the founding documents, the writings and speeches of the Founding Fathers, or even in the twentieth century legislation that changed the nature of militia service, was the right to keep and bear firearms limited to service in a state-run militia. "Militia: The body of citizens in a state, enrolled for discipline as a
military force, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army." The notion that a citizen only has the right to bear arms while serving in the National Guard or the Armed Forces of the United States, is a contrived myth promulgated by modern anti-gun activists and some "left-leaning" progressive jurists who have attempted to legislate their Socialist beliefs from the bench. If you don't believe me, let the Founding Fathers speak for themselves. Let's dissect the amendment in order to better understand what the Founding Father's intended 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. The term "...well regulated..." did not mean regulation by legislative action in any sense of the word. The term militia in the Second Amendment meant all able bodied males between the ages of 16 and 60, later it would mean all men capable of bearing arms who were between the ages of 18 and 45, but you get the idea. The militia at the time the Second Amendment was written pertains to the men capable of bearing arms. It did not mean the National Guard. The National guard was not to be formed for another 116 years. 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. (See a copy of the Militia Act of 1903 here.) 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." 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." The Bill of Rights is a set of Amendments to the United States Constitution that protect the pre-existing individual rights of the people of the United States from governmental intrusion. "I hope,
therefore, a bill of rights will be formed to guard the people against the
federal government as they are already guarded against their State
governments, in most instances." 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. THAT IS THE REAL STORY. IT DOES NOT MATTER HOW THE ANTI-GUN CROWD CHOOSES TO TWIST OR COLOR THEIR STUDIES, THEIR MISLEADING POLL QUESTIONS OR THEIR FABRICATED LEFTIST DIATRIBES. THE TRUTH IS WHAT MATTERS. HOW ARE WE GOING TO PUT THIS ONGOING DEBATE TO REST UNLESS THE TRUTH IS PROCLAIMED BOLDLY, SO THAT OUR VISION OF THE ISSUE IS CLEAR. THEN AND ONLY THEN CAN DEBATE COMMENCE. The Second Amendment When the Second Amendment was written, the Founding Fathers did not speak exactly as we do today. So, to the best of my ability, and through my research, I have tried to translate the Second Amendment into modern English. Here is how I think the Second Amendment would look, if it were adopted today. "Because an efficient and well trained armed citizenry is essential to the security of each State, the right of the citizens to own and carry their individual firearms cannot be violated by government." What An Anti-Gunner Must Believe
In order for an anti-gun person to believe that strict gun control and the Second Amendment in the Bill Of Rights can co-exist, they must believe certain preposterous, absurd and inane concepts.
What must the anti-gunner believe?
My hope is that I did not insult the anti-gun liberal by stating these points. I don't intend to make you feel dumb or unqualified for meaningful debate. I know that you're a very nice person, who simply wants to do something about violent crimes where guns are used, but you just don't know what you're talking about. I have a ton of suggestions for anti-crime measures that would largely leave the 2nd Amendment rights of the people mostly unharmed. Keep reading. We can still be friends. :-)
The Right to Keep and Bear Arms is placed immediately after the First Amendment for a very good reason. The First Amendment of course guarantees our most basic freedoms. The right to worship God without interference from government, freedom of the press, freedom of speech and the freedom to assemble. These rights are essential to living in a free country. I think it is important that everyone realize that 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. "In my opinion, if the Second Amendment is ever actually repealed, and the free Citizens of the United States of America no longer retain the Right To Keep And Bear Arms, free and fair elections, checks and balances on the power of government and the unalienable rights we find in the First Amendment will not outlast a few decades." Marc H. Richardson, 1999 {from a printed newspaper editorial} "...The
right of the people peacefully 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 a
free government. It 'derives its
source,' to use the language of Chief
Justice Marshall, in 'Gibbons v Ogden,' 9
Wheat., 211, 'from those laws whose
authority is acknowledged by civilized man
throughout the world.' It is found
wherever civilization exists. It was
not... a right granted to the people by
the Constitution... 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." In other words, the right to keep and bear arms was not granted by the Constitution, nor given to the people by any government entity. Therefore, the power of the government to remove from people their private arms is completely prohibited. Whether the elected official or the private citizen believes that statement or not, it does not matter. Government does not give rights. The Bill of Rights was designed specifically to protect the people from the government. "I hope, therefore,
a bill of rights will be formed to guard the people against the Federal
government as they are already guarded against their State governments, in most
instances." Let me quote:"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..."
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Copyright (c) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.
THE UNABRIDGED SECOND AMENDMENT
by J. Neil Schulman
If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?
That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".
A little research lent support to Brocki's opinion of Professor Copperud's expertise.
Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.
He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus", has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.
That sounds like an expert to me.
After a brief telephone call to Professor Copperud in which I introduced myself but did "not" give him any indication of why I was interested, I sent the following letter:
*** "July 26, 1991
"Dear Professor Copperud:
"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.
"The text of the Second Amendment is, '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.'
"The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."
"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."
My letter framed several questions about the text of the Second Amendment, then concluded:
"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.
"Sincerely,
"J. Neil Schulman"
***
After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):
***
[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.
In reply to your numbered questions:
[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms "solely" to "a well-regulated militia"?;]
[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
[Schulman: (2) Is "the right of the people to keep and bear arms" "granted" by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]
[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]
[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.
[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]
[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.
[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]
[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.
[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]
[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."
[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
My questions for the usage analysis of this sentence would be,
(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and
(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]
[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.
(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.
***
Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."
So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.
The following text was taken from Gunsite.com
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:
1) The National Firearms Act was not an unconstitutional usurpation of police
power reserved to the states.
2) "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."
3) "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."
4) "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.
A criticism of the Miller decision itself.
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.In a footnote the court stated:(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.
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)
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