In response to some recently published guns rights articles, I’ve had many anti-gun protestors contact me stating that the US constitution does not protect the individual’s rights to bear arms, only the states. Gun control advocates argue for what is called “the collectivist model”. They wrongly interpret the “well regulated militia” clause in the 2nd Amendment as a qualifier that restricts the right to only those sworn members of a government-controlled armed body (standing army).
Many people who do not fully understand the US Constitution like to repeat rhetoric they hear, twisting the real meaning and intentions of our forefathers. To understand the 2nd amendment fully and not just repeat some nonsense you’ve heard along the way, you must fully comprehend the whole US 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.”
So, does the 2nd Amendment protect the individual’s rights to bear arms? Of course, it does. Let’s get into the real meaning of the 2nd Amendment. The “militia” clause was not setting any prerequisite for the exercise of the right to keep and bear arms at all, rather it was an explanatory phrase to state the single most important reason the right must be protected, i.e., to assure ability of the people to take up arms for their individual or “common defense”.
I would also like to point out that in the Colonial Era “militia” specifically referred to the armed citizenry as a whole (as distinct from an “organized militia” which was a government-controlled body, such as a standing army).
The Second Amendment does protect the pre-existing individual citizens right to keep and bear arms, whether the government agrees or not. In addition, even if (IF) the 2nd Amendment actually had only applied to government-controlled armed bodies, that still does not eliminate a pre-existing natural right of the people to keep and bear arms for self-defense or other proper purposes.
Next, in pointing out the 9th and 10th Amendments; the 9th clearly states that just because a right was not listed does not mean it does not exist nor that the Constitution does not protect it. For example, Privacy rights are nowhere listed or referred to by the US Constitution, and yet it still protects those rights. The 10th clearly says that unless the US Constitution specifically grants a power to the government, the power remains in the hands of the people.
In addition, nowhere in the US Constitution is there any basis for the concept that government “grants” rights to the people, nor that the Constitution “created” any rights, only that the people have chosen to grant certain listed and limited powers and authorities to the government, so that the government can help protect the pre-existing rights of the people.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The Amendment as recognizing a right of individuals, enforceable by them in the courts after the fashion of, say, the First Amendment. While acknowledging that, like freedom of expression, the right to arms was perceived as having social values as well as individual ones. The Amendment is intimately connected with self-defense, which the Founders saw as the cardinal natural right–a right of individual and collective resistance to tyranny and other forms of criminal conduct.
Here is what Blackstone said and the words applied to the XIVth Amendment: ” Blackstone explained that there are “auxiliary” rights to “maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” Blackstone included among these rights “that of having arms for their defence suitable to their condition and degree, and such as are allowed by law,” that made possible “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Together with justice in the courts and the right of petition, “the right of having and using arms for self-preservation and defense” were available to preserve the rights to life, liberty, and property.
From a legal point of view:
The “collective/state right” is fairly new in that it was hatched in the federal courts in 1942. In actuality, the militia right / collective right / state’s right theories were legally impotent in 1942. Those lower federal courts had over 120 years of decisions showing that as far as deciding militia issues, the 2nd Amendment was never inspected nor held to instruct on any aspect of militia organization, training or control. If such a condition really existed it is inexplicable that states never claimed this supposed immunity from federal interference in their militias, as federal preemption over state militia powers was ratcheted up, decade after decade leading to the final, ultimate insult, complete federalization of the state guard units. The theory that there were any state militia powers left for the 2nd Amendment to protect in 1942 is ludicrous.
For 120+ years federal courts were busy stripping state militia powers away. Then those courts spent 70 years telling us the 2nd Amendment was there to preserve state militia powers. . . . and obviously there are still people who believe that contrived notion.
I would challenge any of the resident “state’s right” / “collective right” / “militia right” supporters to demonstrate the breadth of authority the states retain over their militia and the means, express or implied, by which state power has been preserved by claiming 2nd Amendment protection.
Gun control activists theory has to have some evidence of it existing, (legally), doesn’t it? Feel free to leave your comments below.