Interpretation of the second amendment

## Second Amendment to the United States Constitution

> "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."
>
>

### A well regulated

* In this context, well regulated means well “disciplined” or “trained". The origin of the phrase “a well regulated militia” comes from a 1698 treatise “A Discourse of Government with Relation to Militias” by Andrew Fletcher, in which the term “well regulated” was equated with “well-behaved” or “disciplined”
* According to the Constitution Center as reported by CNN Politics
	+ What did it mean to be well regulated? One of the biggest challenges in interpreting a centuries-old document is that the meanings of words change or diverge. "Well-regulated in the 18th century tended to be something like well-organized, well-armed, well-disciplined," says Rakove. "It didn't mean 'regulation' in the sense that we use it now, in that it's not about the regulatory state. There's been nuance there. It means the militia was in an effective shape to fight." In other words, it didn't mean the state w as controlling the militia in a certain way, but rather that the militia was prepared to do its duty.
* According to Heller, Opinion of the Court, Part II-A-2
	+ Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
* According to Federalist No. 29
	+ Alexander Hamilton writes about "organizing," "disciplining," "arming," and "training." of the militia

### Militia,

* According to Alexander Hamilton in Federalist Paper 29
	+ Hamilton wanted that each state will be responsible for having their own militia.Other than the federal government having their involvement, each individual state will be held responsible for training and selecting various officers who meet the requirements given to them by Congress. Hamilton viewed that having these militias would also give power to the Union itself and avoid having civilians feel confined by the power of the federal government. ***"to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.''***
	+ Instead of just a disorganized group made up of random people, the militias will be composed of well trained civilians on the same level or near that of a military soldier. ***"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purposes of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and serious public inconvenience and loss. It would from an annual deduction from the productive labor of the country… to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise, and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."***
* According to James Madison in Federalist Paper 46
	+ Madison wanted the state to organize the militia as it was sufficient to guard against threats to national security. ***It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government***... ***Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.  The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.  This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.***
* According to the Constitution Center as reported by CNN Politics
	+ At the time of the American Revolutionary War, militias were groups of able-bodied men who protected their towns, colonies, and eventually states. "[When the Constitution was drafted], the militia was a state-based institution," says Rakove. "States were responsible for organizing this."
* According to the Militia Acts of 1792
	+ The second Act (full text), passed May 8, 1792, provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. (This was later expanded to all males, regardless of race, between the ages of 18 and 54 in 1862.)
* According to Massaro 2013
	+ “A well regulated Militia” refers to the Organized State Militia that is today known as the National Guard and not to individuals who are proficient in the use of weapons or to the entire population.
		- The National Guard is the same entity as the Organized State Militia of 1789 with a modern name. In the Eighteenth Century, "A well regulated Militia" was repeatedly used in The Federalist 29, the Anti-Federalist Papers ("John DeWitt V" and "Aristides"), and Luther Martin's "Genuine Information" to refer to the Article I Militia in the Constitution. The 1792 Militia Act, which codified the definition of "Militia", was abolished in 1903, and the definition of "Militia" has been modified by the subsequent statutes that have been adopted in place of the 1792 statute. In accordance with Congress's Article I power to organize the Militia, the Dick Act of 1903 codified the Organized State Militia as the National Guard. And 10 U.S.C. 101 and 32 U.S.C. 101 explicitly state that the National Guard is the Article I Militia. Therefore, using the mathematical principle that if A equals B and C equals B, then A equals C, if “A well regulated Militia” equals the Article I Militia and the National Guard equals the Article I Militia, then “A well regulated Militia” must equal the National Guard.
* Quotes by founding fathers etc regarding who the militia is referring to
	+ According to George Mason at the Virginia Ratifying Convention (14 June 1788):
		- “I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.”
			* Also its important to know that George Mason authored the first state constitutional precursors to the Second Amendment (1776)
				+ A Declaration of Rights. Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
	+ According to Tench Coxe in William & Mary Bill of Rights Journal
		- "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 birthright 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."
* According to the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, cited as an authority for 1994 USA v. Emerson (N.D. Texas 1999)
	+ The 23 state constitutions with "Right to keep and bear arms" clauses adopted between the Revolution and 1845, and 20 of them are explicitly individual in nature, only three have “for the common defense….” or other “collective rights” clauses.
* According to United States law
	+ U.S. v. Emerson, 5th court of Appeals decision says “We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training” and “We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment”
	+ The Dick Act of 1903 designated the National Guard as the “organized militia”  and that all other citizens were the “unorganized militia” – thus the National Guard is only part of the militia, and the whole militia is composed of the population at large.  Before 1903, the National Guard had no federal definition as part of the militia at all.
* According to American citizens
	+ 62% believe the 2nd Amendment guarantees an individual right, while a mere 28% believe it protects the power of the states to form militias.

### being necessary to the security of a free State,

* According to James Madison in Federalist Paper 46
	+ The militias purpose is to exist to keep the federal government in check. Perhaps, as Madison predicted, all the other checks and balances will always prevent tyranny. but should tyranny ever triumph, the us constitution provides a mechanism to restore constitutional order. ***Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.***
* According to Justice Scalia, Opinion of the Court in DC v Heller
	+ "There are many reasons why the militia was thought to be 'necessary to the security of a free state.' See 3 Story §1890. ***First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia.*** The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). ***Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.***"
* According to Madison’s ally Tench Coxe, a delegate to the Continental Congress for Pennsylvania, explaining the proposed Second Amendment
	+ "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

### the right of the people

* According to the Constitution Center as reported by CNN Politics
	+ "When we think about 'rights,' we think of them as regulations and exemptions," Rakove says. "Back at the birth of our nation, they had a different quality. They were more moralistic." Rosen says this viewpoint is reflected in the Declaration of Independence: ***[A]ll men are... endowed by their Creator with certain unalienable Rights...That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.*** A clear statement that "rights" are inherent and not granted. "The framers definitely believed in natural rights -- that they are endowed by a creator," Rosen says. "They believed we are born into a state of nature before we form governments, and that we are endowed with certain fundamental rights." These natural rights included the right to religious expression, free speech, property and more. But they did not, Rosen says, specifically include the tenets of the Second Amendment. "The framers did not talk about the right to bear arms as one of the set of natural rights," he says. "But it is fair to say that the right to alter and abolish government -- to the degree that modern people claim they have that right -- the framers certainly believe it." "In that sense, it is historically accurate to say that the framers did recognize a natural right of self-defense."
* According to **District of Columbia v. Heller**
	+ case in which the U.S. Supreme Court on June 26, 2008, held (5–4) that the Second Amendment guarantees an individual right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home.

## Misquotes

### Thomas Jefferson

* "No free man shall ever be debarred the use of arms."
* "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government"
* "The beauty of the Second Amendment is that it will not be needed until they try to take it."

### George Mason

* “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”
	+ These are actually two different quotes combined
		- ***I ask, Who are the militia? They consist now of the whole people***, except a few public officers. But I cannot say who will be the militia of the future day.
		- An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man,who was governor of Pennsylvania, ***to disarm the people; that it was the best and most effectual way to enslave them***; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? In the book in which this is quoted, the two parts appear thousands of words apart, and in reverse order. So the fake quote is roughly representative of what Mason was saying, but it's not actually a quote.