2A was always meant to be about individual ownership.
At the time the rationale for a right was frequently included in the text, just as a modern reading of the right implies it is being used as an explanatory clause. The entire concept was that there would be no governmental army and in times of need, citizens would be able to use their arms and organize for mutual defense. In this context, "Militia" is synonymous with an decentralized armed citizenry without government oversight. The clause provides this rationale and coveys a sentiment against a standing army. here are what some state constitutions had to say about gun ownership, prior to the bill of rights.
Article XIII of the Pennsylvania Declaration of Rights of 1776 read:
>That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:
>The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
James Madison produced an initial draft of the Second Amendment as follows:
>The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
I pulled the quotes from this link, which has more text and discussion.
The first clause of the second amendment wasn’t judged perfunctory until about 2013. It was never seen that way when the founding fathers were alive, or during most of America’s history. The NRA started the movement to eliminate the first clause from having any legal meaning at all in the late 1970s by simply excluding it when they recited it.
The constitution is limitations on the government, not citizens. It doesn’t mean citizens only have the right to own weapons for militia use, it just means the government cannot restrict them for such.
In the 18 and 19th century, commentary around the 2A included the militia requirement, focusing more on what a militia was than if it was a requirement at all (see wiki commentary section in https://en.wikipedia.org/wiki/Second_Amendment_to_the_United...). The idea that militia isn’t a requirement doesn’t even come into play until the late 20th century and is legally deleted in the 21st.
I think your first link is revisionist history and rhetoric. IT isn't consistent with English common law, contemporary practice, or the other evidence.
If the information already included in your own Wikipedia links dont convince you of this, I wont be able to either.
Similarly, I don't buy the argument that it only restricts the federal government, not the states. The 10th amendment is clear that states are prohibited from infringing on some individual rights. This is obviously the case with the 6th through 8th,unless you think states and cities are free to conduct juryless trials and have cruel and unusual punishments
I’ve spent a lot of time thinking about this idea over the years, and I truly think that with the stats of having more guns than people in a country like the USA, the average person ought to have more faith in humanity since gun violence is not nearly as much as you’d think.
The vast majority of Americans have never even witnessed a gun fired in public. Which is crazy if you think like a European might: "If everybody had guns then bad people would just shoot other people all the time". There is nothing in ordinary American life hinting that guns are dangerous. You have to look at statistics in order to form some kind of an idea that there is a problem.
The fact that there are so few incidents, relatively speaking, speaks volumes for the decency of the people, how responsible they are with their guns.
I like to draw an analogy to the Nordic countries where we have "the freedom to roam". Anyone can roam around on public (and even private) land and put up their tent for the night, pick berries etc. This causes very little problems, because people learn from a young age to behave responsibly in nature.
But then you have (too) many countries in Europe where wild camping is illegal. That means there's no culture around it. And the thought is that if they now made it legal it would just exacerbate the problems they have now, like people throwing trash in nature, causing wildfires etc. Yes, in the short term it probably would, because you just neutered people's ability to display responsible behavior by not letting them create a culture around it. If people are raised with that responsibility it tends to not become a problem during adulthood.
That's why I support gun rights in practically every country. Teach people from a young age to be responsible with guns and let that flourish in adult life. Trust people. Don't punish everyone for a few bad eggs.
The original meaning of the Second Amendment was the federal government couldn't take away your right to own a gun – but whether state or local governments could was outside of the scope of the federal constitution, it was a matter for state constitutions and state laws to determine. At the time it was passed, state and local laws imposing limits on gun ownership were widespread (often on grounds of race or property ownership) – and the Second Amendment was not seen as contradicting those laws in any way.
Then they passed the 14th Amendment. And the original intention behind the 14th Amendment, was nothing to do with guns at all – it was to protect the rights of the recently freed slaves – nobody was even thinking about guns at the time they voted for it. And then, decades later, the Supreme Court started to interpret the 14th Amendment as applying parts of the Bill of Rights to the states. They used the 14th to apply the 1st to the states in the 1925 case of Gitlow v. New York. And then in the 2010 case of McDonald v. Chicago they did that to the 2nd as well. It was hard to argue not to do it with the 2nd when they'd already done it with most of the others.
The way you're talking about the second amendment I expect that you don't want the same interpretation applied to the first amendment the Fourth amendment or the 5th amendment. Because if that was the case then it simply the federal government is the ones that cannot compel you to be a witness against yourself or the federal government cannot deprive you of your security of property or papers and the federal government is the one that cannot limit your freedom of speech but the state can do all of those things at will without regard to any federal powers. If that's your official position please state that clearly because the supreme Court has said that the second amendment is not a second class freedom compared to the others. And it was never the intention for it to be by the founders.
> The way you're talking about the second amendment I expect that you don't want the same interpretation applied to the first amendment the Fourth amendment or the 5th amendment.
No, I'm saying that a consistent originalist interpretation would be that the Bill of Rights should not be applied to the States, absent a constitutional amendment clearly stating that, and understood as stating that at the time it was adopted. The 14th Amendment was adopted in 1868, it wasn't interpreted as applying the 1st to the states until 1925 – over 50 years later.
If people wanted states to be bound by the 1st Amendment – or the 2nd or the 4th or the 5th – they should have passed a constitutional amendment explicitly saying so, not relied on SCOTUS to de facto amend it by interpreting the 14th as saying something that few thought it meant at the time it was adopted.
I disagree: I think the reference to "arms" was originally understood as applying primarily to small arms, not artillery. I think, in the first few decades of the 2nd Amendment being in force, federal restrictions on purely private ownership of artillery – and especially large artillery – would likely have been upheld, while federal restrictions on purely private ownership of small arms would almost surely have been struck down. While people at the time could not have foreseen nuclear weapons, they are more like large artillery than small arms, so I think federal restrictions on purely private ownership of them would likely have been upheld even given the original meaning of the 2nd Amendment. (By "purely private", I mean to exclude military units organised by state or local governments.)
The point is, if the federal government had tried to restrict private ownership of certain kinds of artillery in the early 19th century, would it have been held to have violated the 2nd? Nobody can say for sure, because the issue (to my knowledge) never came up – but if it did, I expect SCOTUS would have drawn a legal distinction between small arms commonly used for infantry, hunting and personal self-defense, versus larger scale military weapons. Such a distinction can be defended on originalist grounds, since small arms was the primary thing the people who voted for the 2nd were thinking about.
It actually raises an interesting historical question – to which I don't know the answer – in the debates on the proposal and ratification of the 2nd, was the status of larger scale weapons under it ever raised?
> The original meaning of the Second Amendment was the federal government couldn't take away your right to own a gun
There's also that "well regulated militia" bit in the text.
We could require several months of membership in a firearms club and a minimum level of proficiency required to be displayed at a gun range, and it shouldn't violate any SANE interpretation of the Second Amendment, while keeping random 18-20 year olds from being able to buy an AR15 on a psychotic whim.
We also routinely required guns to be surrendered inside of cities back in the 1800s because we understood that there was a difference between being armed on your private property and being armed while getting smashed in a bar.
> We also routinely required guns to be surrendered inside of cities back in the 1800s because we understood that there was a difference between being armed on your private property and being armed while getting smashed in a bar.
Huh, interesting. That would be a fascinating test of Bruen, wouldn't it?
The 10th amendment literally extends rights to local and state governments NOT mentioned in the Constitution. The right to firearms WAS mentioned. This comment is nonsense.
Please look up the incorporation of the bill of rights. It is clear that the Bill of Rights did not apply to the states. That is why several states actually had state churches after the bill of rights.
No, what I said is not nonsense at all. I was arguing that, on originalist grounds, incorporation ought to be rejected, which would mean no incorporation for the 2nd – but not for the 1st either. Whereas I'm not sure what you are even trying to say.
It seems like you’re being downvoted and disagreed with but I was under the impression the process you are talking about was known as incorporation and was rather widely understood constitutional law.
Yes, but what I'm saying is the "incorporation" was invented by the Supreme Court, almost out of thin air. A consistent originalist would reject the doctrine entirely.
Okay, they read it out of the intentionally vague language of the 14th Amendment. But nobody who voted for the 14th thought that it meant that.
Everyone who voted for the 14th actually knew what it meant at the time – it was a narrow measure to stop Democrats from taking away the civil rights of newly freed slaves. It was written in a vague and ambiguous way as a political fudge to make it easier for legislators to vote for it, given many of their (racist/pro-confederate) constituents opposed it. It was not written with the intention that it would be read as carte blanche imposing the near whole of the Bill of Rights on the states, which is essentially what incorporation amounts to.
