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> Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.
> In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment.
I have long been an ACLU member and donor. Despite my differences of opinion on some matters, I have been grateful that they have fought in the name of rights in a great many cases. I do wish they would take a broader view on their mandate on Civil Liberties, today and tomorrow.
Can you point me in the direction of these writings?
Ironically, Hamilton was both wrong and right here. He was right that by enumerating rights in the BoR that it has empowered the government to view those rights as the only ones that are untouchable (and not even that.) However, he was wrong that the COTUS would stand on its own to protect individual rights due to its strict limiting of the government's ability to infringe those natural rights -- which it very much has done.
Later in life, even:
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson, letter to John Cartwright, 5 June 1824
This isn't even remotely true. The 10th Amendment, for example, explicitly concerns the rights of the states and not the individuals within them.
The phrase "well-regulated militia" should be a giveaway to you: individual human beings are singular, not plural, and the concept of a "well-regulated individual" doesn't make much sense either in the language of the framers. We've so profoundly distorted the original language as to effectively erase "militia" entirely[1].
[1]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
> 7. That the people have a right to bear arms for the defence 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 of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
Both the first and forth amendments also use the wording "the people" to refer to an individual right.
Moreover, the militia is and was intended to be every able bodied male.
> The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
> (b) The classes of the militia are—
> (1) the organized militia, which consists of the National Guard and the Naval Militia; and
> (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
https://uscode.house.gov/view.xhtml?path=%2Fprelim%40title10...
> Both the first and forth amendments also use the wording "the people" to refer to an individual right.
That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person." It's a particular kind of institution, one that the 2A recognizes must be well-regulated. That's why 10 USC isn't the "gotcha" that armchair scholars think it is: the general body of the population is the opposite of a well-regulated militia, even if they are perfectly eligible for service in either a militia or the armed forces.
And note: I'm not claiming that "well-regulated" means that the framers meant "full of regulation." The framers were clasically educated: their understanding of the world "regulate" is the non-personal version of "moderation," meaning something closer to "striking a balance." There is nothing particularly balanced about either a complete ban on arms (you will note that no liberal democracy on Earth actually does this) or our current clown show of private militias showing up to protests strapped with assault rifles.
> That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person."
This is a weird take. There is no indication or grammatical reason that "people" and "militia" are convertible.
If you read the various state versions of the 2A many are more clear than the federal that it applies to individuals. There is a state court case https://en.m.wikipedia.org/wiki/Nunn_v._Georgia
Also the infamous Dread Scott decision mentions it:
> It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
10 USC was not supposed to be a gotcha. It is showing that just as at the time of the founding, all citizens were expected to keep and bear arms, and thus also know how to use them so still does federal law reflect that.
Quick note: people are not protesting with "assault rifles" because one is defined as select fire and they are very expensive to acquire. Although I do wish that this was not the case.
If I interpret the first amendment to only apply to brown eyed people, and then defend that very odd interpretation, am I still a defender of the first amendment?
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
See my other comment below about the precise legal definition of militia.
The page argues that it means something like "running well", but the examples they give seem to me to fit better with a slightly different meaning that also matches the etymology of the word (in Latin a regula is a rule; it comes from the word meaning to rule or govern). I think "well-regulated" means some combination of: well organized, well governed, well adjusted, well controlled.
In the Second Amendment it may or may not have specifically the sense of "well organized/governed/adjusted/controlled by the nation's government". But it's definitely not just talking about a militia that has enough weapons, or a militia that is good at shooting the people it wants to shoot; a well-regulated militia is one that is well organized and that makes good choices about who to shoot and why.
(It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment. I think it's mentioned in passing, possibly exactly to reassure people who might otherwise worry that the 2A is trying to set things up so that armed mobs terrorize everyone. "For a free state to remain secure, it needs a militia -- yes, yes, of course it has to be a well regulated one -- and so the people must be able to have weapons.")
That's how I read it as well. In fact, I consider the whole first part of 2A ("A well regulated Militia, being necessary to the security of a free State,") as more of a quick justification that has no legal bearing on the actual right that follows ("the right of the people to keep and bear Arms, shall not be infringed.")
So, essentially, "A well regulated Militia being necessary to the security of a free State [begets that] the right of the people to keep and bear Arms shall not be infringed."
Well, it's critical to the point in that a working militia can serve a purpose, and a broken militia can't.
Contemporary documents make the point of the Second Amendment very explicit - its purpose is to prevent the United States from maintaining a standing army. But that's not what it does or what it claims to do; that's just the reason it exists.
It's worth noting here that this is frequently cited and correct, but misses a critical point: this was before permanent paramilitary police forces, and one of the main reasons for fearing the establishment of a standing army is that this armed force with a distinct and insular culture from the citizenry would inevitably be used for internal security as well as against external enemies; the fear of standing armies is perhaps most accurately understood as a fear of permanent, insular domestic security services extending so far as to fearing permanent defense forces that could be turned to that purpose.
Given how few words the Constitution uses to describe things, I have to assume there is a point of some kind to every word in the document. We've chosen to interpret all of these words in 2A to be irrelevant, but if the writers of the document intended that, why did they put them there to begin with?
> 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.
Then, the next time it appeared, it was reworded as
> A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
Before being whittled down to nix religious exemption and leave ambiguous who runs the militia
> 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.
Judging from the Congressional record nobody focused on the fact that the militia clause got flipped between meetings, so take from that what you will.
Saw one on display at the national archives.
So it was explicitly added or kept after negotiation.
See https://reason.com/2019/11/03/what-is-a-well-regulated-milit...
> 7. That the people have a right to bear arms for the defence 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 of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
For example, Article I Section 8 provides Congress the power
"To make Rules for the Government and Regulation of the land and naval Forces;"
It's in a similar manner that the 2nd should treat 'regulated' militias.
Remarkable. The Founders totes protected the right to bear arms because of "racism," and not because they had just used the right to bear arms to found for themselves a new country free of the British monarchy. That makes total sense.
Collapsing the entire history of a nation into a narrative about a minority within the nation.
That’s a very succinct way of putting it, thanks for this comment.
American white southerners (and white northerners for that matter) were scared out of their minds about the possibility of a rebellion comparable to the Haitian Revolution, which was contemporaneous with (edit: to clarify, took place during the ratification of) the Bill of Rights. https://en.wikipedia.org/wiki/Haitian_Revolution
A guarantee that “well regulated” militias under local control would not be taken down by the federal government was certainly related to slavery. Maintaining wealthy landowners’ power and protecting from slave revolts or other uprisings of disempowered people was perhaps the #1 purpose of those local militias.
Wasn't a war for independence in which widespread civilian firearm ownership played a part in winning also kind of contemporaneous with the Bill of Rights?
That's not accurate. The Bill of Rights was passed by Congress two years prior to the Haitian Revolution.
Both (a) worries about a national government changing the status of slavery against local landowners’ wishes and (b) worries about slave revolts were important for Virginian antifederalists. Maintaining a local militia was a hedge against both.
You are right that the ideas in the Bill of Rights come from earlier. The Virginia Declaration of Rights (1776) was the main source of the text of the 2nd amendment: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense 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.”
Likewise, the Haitian Revolution was not the first slave revolt.
I read her book, by the way; I ended up also reading two others over the last week that I think were more compelling, and made her points in a more definitive way. She's totally right that, especially in the Carolinas, slave revolts were one fear that led people to want guns; in fact, a part of the revolution becoming so bloody there was due to that fear; the British governor took the powder away.
The people interpreting her (this was not something she said, at all) are not correct in thinking that this created the full foundation of antifederalist thought, but there was definitely an undercurrent of it in the deep south and to a lesser extent in Virginia.
Unfortunately, she misrepresented some things that appeared to support her conclusion, including the data around gun ownership in the 18th century. No fabrications, just not telling the whole picture. It's a problem endemic to pop history.
I'm still going through my old notes from the letters between the major political players from 1785-1790 and looking for references there so I'm not ready to concede the Henry stuff or that this is the reasoning behind the 2nd's inclusion.
It’s almost as if there’s no principle there and it’s just an effort to smear something you don’t like anyway.
There is indeed a consistent principle there – white supremacy (and more generally, rich straight white male supremacy). All of the rest – “public safety”, “free markets”, “job creation”, “economic growth”, “liberty”, “equality”, “patriotism”, “justice”, “respect for the law”, “meritocracy”, “republicanism”, “accountability”, “fiscal responsibility”, “originalism”, “family values”, “Christianity”, “truth”, etc. – are secondary, swappable, and dispensable smokescreens. At a glance these post-facto “principled” justifications seem contradictory and hypocritical, but that’s only for listeners who take any of them at face value.
Those who quick-change their claimed fundamental philosophical principles whenever convenient routinely turn around and (to use your term) smear anyone opposed to them.
As a non-white immigrant to American, this uniquely American form of self flagellation is remarkable to me. Of all the things I find noteworthy about America and its history, I think of those other things you listed. The “racism” is among the least notable of characteristics. Historical slavery and dominance by the ethnic majority is what America shares with countries in Africa, Asia, and the Middle East—not what sets it apart!
Sometimes, though, I feel guilty for pushing back on this sort of thinking. This depredation of one’s own history and cultural heritage is incomprehensible to me as a foreigner, but maybe this zealous self loathing is actually what drives America’s distinctive capacity for self improvement.
Ah yes, we should all instead celebrate mass murder, slavery, mass incarceration, torture, etc. Hooray for the Battle of Wounded Knee!
While we are at it we should be cheering for children to be shot at school mass shootings, women to die in dangerous pregnancies they were forced to carry to term, innocents to rot in prison after crooked cops planted drugs on them, transgender teenagers to be lynched, and elderly homeless people to die on the street after being defrauded of their life savings.
Because caring about what happens to other people would be “self flagellation”, a deep waste if we could instead spend that attention on working for a big suburban McMansion packed with servants where we can train our own children to be entitled little shits, to prepare them to come out at the top of the coming social turmoil when global warming starts to really wreak havoc. Just don’t let those kids get near public school teachers, Tucker told me they are all pedophiles.
That's a pretty weird argument; I get the Patrick Henry thing with the Virginia Declaration of Rights but that doesn't even establish the 2nd amendment as we know it.
Hell, we actually have the reasoning here in Federalist 46:
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. "
I'll read her book to see what she thinks I suppose because she's a prominent historian and surely knows more than me but it still feels strange.
ACLU _has_ supported NRA in its lawsuit against New York State, which alleges that the state discriminated against the organization because of its pro-firearm views: https://www.aclu.org/blog/free-speech/new-york-state-cant-be...