-- Benjamin Wittes, legal affairs analyst and guest scholar, Brookings Institution
Worth repeating. Good one, EdReform.
One of my favorite Samuel Adams quotes was "How strangely will the tyrant pervert the plain meaning of words!" Some truths are indeed perennial.
The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.
"As explained below, the text of the Second Amendment points to a personal right of individuals: A "right of the people" is ordinarily and most naturally a right of individuals, not of a State and not merely of those serving the State as militiamen...
The Second Amendment's recognition of a "right" that belongs to "the people" indicates a right of individuals. The word "right," standing by itself in the Constitution, is clear. Although in some contexts entities other than individuals are said to have "rights," (37) the Constitution itself does not use the word "right" in this manner. Setting aside the Second Amendment, not once does the Constitution confer a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a "right of the people" discussed below, the Constitution in the Sixth Amendment secures "right[s]" to an accused person, and in the Seventh secures a person's "right" to a jury trial in civil cases. (38) By contrast, governments, whether state or federal, have in the Constitution only "powers" or "authority." (39) It would be a marked anomaly if "right" in the Second Amendment departed from such uniform usage throughout the Constitution.
In any event, any possible doubt vanishes when "right" is conjoined with "the people," as it is in the Second Amendment. Such a right belongs to individuals: The "people" are not a "State," nor are they identical with the "Militia." Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a "right" only to the "people." The phrase "the right of the people" appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The First Amendment secures "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," and the Fourth safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In addition, the Ninth Amendment refers to "rights . . . retained by the people." We see no reason to read the phrase in the Second Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments..."
"Eight years ago, I got into an argument with a nonlawyer acquaintance about the Second Amendment. The Amendment, this person fervently announced, clearly protects an individual right. Not so, I argued to him, thinking him to be something of a blowhard and even a bit of a kook.
Three years ago, I discovered, to my surprise and mild chagrin, that this supposed kook was entirely right. In preparing to teach a law school seminar on firearms regulation (one of the only about half a dozen such classes that I know of at U.S. law schools), I found that the historical evidence -- much of which I set forth verbatim in the Appendix -- overwhelmingly points to one and only one conclusion: The Second Amendment does indeed secure an individual right to keep and bear arms.
1. The Text of the Amendment Refers to an Individual Right
The Second Amendment, like the First, Fourth, and Ninth Amendments, refers to a "right of the people," not a right of the states or a right of the National Guard. The First Amendment guarantees the people's right to assemble; the Fourth Amendment protects the people's right to be free from unreasonable searches and seizures; the Ninth Amendment refers to the people's unenumerated rights. 1 These rights are clearly individual -- they protect "the right of the people" by protecting the right of each person. This strongly suggests that the similarly-worded Second Amendment likewise secures an individual right..."
Excerpts from: UNITED STATES OF AMERICA V TIMOTHY JOE EMERSON
"... We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect.(21) However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.(22) We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment...
People ... There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights."(24) Moreover, the Constitution's text likewise recognizes not only the difference between the "militia" and "the people" but also between the "militia" which has not been "call[ed] forth" and "the militia, when in actual service..."
Several other Supreme Court opinions speak of the Second Amendment in a manner plainly indicating that the right which it secures to "the people" is an individual or personal, not a collective or quasi-collective, right in the same sense that the rights secured to "the people" in the First and Fourth Amendments, and the rights secured by the other provisions of the first eight amendments, are individual or personal, and not collective or quasi-collective, rights...
It appears clear that "the people," as used in the Constitution, including the Second Amendment, refers to individual Americans.
Bear Arms Proponents of the states' rights and sophisticated collective rights models argue that the phrase "bear arms" only applies to a member of the militia carrying weapons during actual militia service. Champions of the individual rights model opine that "bear arms" refers to any carrying of weapons, whether by a soldier or a civilian. There is no question that the phrase "bear arms" may be used to refer to the carrying of arms by a soldier or militiaman. The issue is whether "bear arms" was also commonly used to refer to the carrying of arms by a civilian..."
However, there are numerous instances of the phrase "bear arms" being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the "people" [or "citizen" or "citizens"] "to bear arms in defense of themselves [or "himself"] and the state," or equivalent words, thus indisputably reflecting that under common usage "bear arms" was in no sense restricted to bearing arms in military service.(29) And such provisions were enforced on the basis that the right to bear arms was not restricted to bearing arms during actual military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).
We also note that a minority of the delegates to the Pennsylvania ratification convention proposed the following amendment to the Constitution:
That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.2 Documentary History of the Ratification of the Constitution 623-24 (Merill Jensen ed., 1976). This is yet another example of "bear arms" being used to refer to the carrying of arms by civilians for non-military purposes. Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty." 2 The Papers of Thomas Jefferson 443-44 (J.P. Boyd, ed. 1950). A similar indication that "bear arms" was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster's American Dictionary of the English Language; where the third definition of bear reads: "[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat."
We conclude that the phrase "bear arms" refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which "bear arms" appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that "bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected.(30) The appearance of "bear Arms" in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, "the people," and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of "bear arms" as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz:
"Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."
Keep . . . Arms Neither the government nor amici argue that "keep . . . Arms" commands a military connotation.(31) The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.
Substantive Guarantee as a Whole Taken as a whole, the text of the Second Amendment's substantive guarantee is not suggestive of a collective rights or sophisticated collective rights interpretation, and the implausibility of either such interpretation is enhanced by consideration of the guarantee's placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole.
Effect of Preamble We turn now to the Second Amendment's preamble: "A well-regulated Militia, being necessary to the security of a free State." And, we ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that it does not..."
"... The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of Rights, similarly provided for a right of the people to keep and bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected against infringement by both.
Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights — as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to the organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constituted, and indeed were philosophically opposed to, the concept of a militia...
The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner..."
Even better, today he might say “How strangely will the pervert tyrranize the plain meaning of words..”