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The Second Amendment is a mess

REUTERS/Jonathan Ernst
When Second Amendment extremists start talking about how Hitler took away people’s guns, are they alluding to the so-called “insurrectionist” motivation behind the Second Amendment?

First of three articles.

When he was in Minneapolis in February to argue for his proposed new gun-control measures, President Obama said “there’s no legislation being proposed that would subvert the Second Amendment.”

Obama, who taught constitutional law at the University of Chicago, surely has a more informed and nuanced view of this than I could ever hold, but he can’t possibly be as confident of that statement as he sounds because the Second Amendment is a mess. You don’t have to tune in very closely to the 2013 debate to hear opponents of additional gun control measures denouncing the proposals as not only bad ideas but blatant violations of the constitutional right to bear arms.

For example, although the second-biggest gun rights advocacy group in the country (the Citizens Committee for the Right to Keep and Bear Arms at least claims to be the second biggest) has endorsed the so-called Manchin-Toomey compromise proposal for increasing background checks on would-be gun buyers, the biggest group, the NRA, has denounced the Manchin-Toomey compromise pledging that: “The NRA will oppose any amendments … that restrict fundamental Second Amendment freedoms… This includes the misguided ‘compromise’ proposal drafted by Sens. Joe Manchin, Pat Toomey and Chuck Schumer.”  Likewise, when the Minnesota Legislature considered a bill requiring uniform background checks, Republican state Rep. Jim Newberger called the measure “an egregious attack on the Second Amendment.”

Of course, thanks to the First Amendment, people can say pretty much whatever they want about what the Second Amendment means, but none of them know because the Second Amendment is a mess. 

The post-Newtown moment, when it seemed for a few weeks that strong gun-control measures might be adopted by Congress, is blowing over. The current conventional wisdom is that Congress will not adopt any new restrictions on the purchase of  “assault” weapons or high-capacity magazines. According to conventional wisdom, the Senate will at least be allowed to vote on gun measures rather than be blocked by filibusters, but it seems unlikely that anything that could be called gun control, including the Manchin-Toomey amendment, will pass in the Republican-controlled U.S. House as long as the NRA opposes it. At most, some current loopholes will perhaps be closed in the existing laws that check would-be gun purchasers for criminal records or history of mental illness. We shall see.

I’m neither a hunter nor a gun-owner. I’ll confess that on the one hand, I favor most of the common gun-control proposals, and on the other hand, I have no great confidence that any of them would greatly reduce U.S. gun violence.

Since, as regular Black Ink readers know, I’m fairly obsessed with (but no longer worshipful of) the U.S. Constitution, I’ve spent considerable effort over recent weeks trying to understand what rights the Second Amendment might guarantee. The screed below is the first of three in which I’ll try to pass along what I’ve learned.

Key words

The Second Amendment, like the rest of the first 10 amendments which we call “The Bill of Rights,” was drafted by the First Congress in 1789 and quickly ratified as part of the compromise for final acceptance of the then-brand-new U.S. Constitution.

The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different — so different that its modern meaning is almost completely detached from its original purpose.

For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.

They have stirred it up so much that I can’t help but wonder whether the jurisprudence of gun control will soon join abortion and campaign finance as (sub rosa) litmus test issues for future Supreme Court nominees.

Certainly, some advocates of gun rights believe that everything Obama proposes would subvert the Second Amendment. But given the recent revolution in Supreme Court interpretation of the Second Amendment, it would be pretty risky to predict what the Supreme Court might think of any limit on who can “keep and bear” any type of weapon and what kind of government-imposed background check can be imposed.

If one wants to try to predict what limitations on “the right of the people to keep and bear arms” the Supreme Court might allow, the story of how the Amendment came to be in the Constitution, and the interpretations the Supreme Court has made of it in the two-plus centuries since then, are, of course, important elements. Those will be subjects of the second and third parts of this miniseries. But the interpretation of any law must start with the actual language of the law as enacted. So, for today, let’s just put the text of the Second Amendment under the microscope. Here is its full text:

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.

Some problems

It’s a disaster. Seriously. Here’s just a sample of problems it presents.

What’s a militia? If you aren’t in a militia, does this have anything to do with you? Or perhaps (and this is roughly the current Supreme Court interpretation) what if “militia” is just an 18th century word for all the able-bodied males in a state who had better have access to arms in case their state needs them to secure its freedom even though they might not actually “belong” to what we 21st century-types would recognize as a militia, like a National Guard unit that you actually joined and were trained by and that actually has a command structure.

But if “militia” doesn’t refer to an organized group, what’s “well-regulated” doing in there? Who gets to decide whether the (actual or theoretical) militia you are in is well-enough-regulated to trigger (no pun intended) whatever impact the militia clause has? Who is doing the regulating? The state? The United States? The (non-existent but theoretical) organization of all the gun-owners in the state acting as self-regulators?

This “free State,” what is the threat to its freedom that the well-regulated militia is necessary to secure? Are we talking about a state defending its freedom against neighboring states, against foreign states, against the United States? If you listen for it, you will hear rhetoric from the most vociferous advocates of a broad reading of the Second Amendment suggesting that the deepest underlying purpose of the Second Amendment was to allow the people to resist the tyranny of their own national government.

And frankly, if you think about the larger history behind the whole Bill of Rights, the idea that the amendments were meant to strengthen state and/or individual power against the potential tyranny of the powerful new federal government that had just been created by the Constitution of 1787 might have been in the air in 1789 when the Bill of Rights was drafted. But what does it mean in 2013?

When Second Amendment extremists start talking about how Hitler took away people’s guns and Stalin took away people’s guns and no one had better try to take away their guns, are they alluding to the so-called “insurrectionist” motivation behind the Second Amendment? Do they imagine literal combat between private gun owners in some particular state and the actual organized U.S. military?

And that reminds me, what kind of “arms” do “the people” have a right to “keep and bear?” Half or more of modern gun control talk is about limiting the average citizen’s access to certain specific kinds of guns (like automatic weapons, for example) that the 1789 crowd knew nothing of. And, come to think of it, “arms” is a broader term than “guns.” Bazookas are “arms” and so are nuclear warheads, although the 1789ers didn’t know about them. The actual language of the amendment contains not a syllable or a hint of any limitations on the kinds of arms that “the people” have a right to “keep and bear.” Presumably, that doesn’t mean individually owned nukes, but you won’t find anything in the language of the Second Amendment to suggest otherwise.

I suppose I could do another whole comedy routine on the possible meanings of “keeping” and “bearing,” which actually might be quite relevant in the era of the “concealed carry” movement, but hey, you have other things to do with your day. Let’s just conclude with this: If you had to apply the plain language of the Second Amendment to the modern questions gun controllers and anti-gun controllers face, it would either mean way too much or way too little.

Wednesday: What was going on in the new republic that led to the Second Amendment?

Comments (62)

  1. Submitted by Rich Crose on 04/16/2013 - 09:02 am.

    National Guard

    Throw in the fact that the Federal Government co-opted the State’s militia’s by forming the National Guard in 1903 and expanded their powers in 1916 and the word militia in the amendment loses all meaning whatsoever.

    The second amendment is as current as the constitutional references to slaves using the word “chattel” and “property”. Times change. The constitution should change.

  2. Submitted by Neal Rovick on 04/16/2013 - 09:47 am.

    The Articles of Confederation, with states operating with significant independence, proved to be insufficient to tie together the states into a united country. The Constitution was the second try, with the bill of rights being yet another attempts at addressing the remaining concerns.

    What issues did the second amendment address? The states had a way of maintaining a military force to resist the tyranny of a central government. The nation gained a widespread military force to resist extra-national threats(France, Spain, Britain–remember they were on the south, west and north boundaries) and internal threats (Native Americans and random insurrections). It served both purposes in that one sentence.

    Well-regulated militia? There are pages and pages of printed rules related to well-organized militias like in Massachusetts. Do a quick search on Google books and you will find volumes of regulations contemporaneous with the writing of the Constitution. There are rules that decide who is fit for service, who is required to serve, muster and training schedules, chain of commands, and even rules of when and how guns may be discharged. I really see no confusion at all related to that term. It was certainly clear in that sentence that an unregulated “militia” (an assembly of armed but untrained and undisciplined citizens) was not a thing to be desired (mob, anyone?)..

    As for a modern extension of keeping arms, that is a quandary for today–if there were well regulated militias, then the arms of a regular army would be kept by members of the militia, to fulfil the desire and right of an effective dispersed military force throughout the states in the nation.

    It is the idea of a “well regulated miltia” that provides the clue as to how the second amendment interfaces with the current gun debate–there is no militia today that corresponded to the militia of that time. There is no corresponding training and discipline in an organized group of citizens within any state. Former Governor Perpich brought a case that a state had the right to maintain a militia if they wanted to–but there would be the costs of arming and training the miltia that no state wants to assume alone these days (National Guard ain’t the militia of the Constitution) .

    So that is where the weakness of the current interpretation of the “right to keep and bear arms” under the Constitution is. Going to the range every once and a while with your shootin’ buddies does not constitute a “well regulated militia. Fulminating about the perfidy of the feds and playing at moving beyond waving the “Don’t Tread on Me” flag doesn’t make a militia.

    The well-regulated militia in Minnesota would be a military force controlled and ruled by the State of Minnesota, paid for entirely by the taxes on the citizens of Minnesota, with a clearly defined chain of command from the lowest citizen-private to Governor. It’s uses and instructions would be determined by the lawfully elected government of Minnesota, as determined in solemn deliberation.

    Nowhere in the Constitution of the United States or the Constitution of Minnesota is private insurrection lawful. Nowhere is it lawful to overthrow the government of the United States or overthrow the government of the State of Minnesota. Nowhere is it legal to address private grievances against any government via military means. The Constitution has no such provision. The proper mechanism is through the legislature, through the courts or for a state to withdraw from the Union and suffer the consequences of that action, if resisted by the government of the Unitied States of America.

    No private wars, no private battles, no attacks on Federal officials or agencies. It’s either a battle by an entire state or it is not legal. The legal means for addressing issues or withdrawing from the Union are there. If a majority of US citizens or Minnesota citizens do not agree with you, oh well, that is democracy. Live with it, or turn into an outlaw.

    But this does not address the “natural right” of self-defense, which is entirely different than the constitutional argument….

  3. Submitted by Carl Brookins on 04/16/2013 - 10:09 am.

    the important phrase

    I have a copy of the Constitution beside me on my desk. I refer to it when I occasionally respond to those who profess to “know” the language but in fact, do not.

    The key phrase, in my opinion, is “shall not be infringed.” I have two questions:

    How does the registration of ALL gun sales, public and private, infringe on law-abiding citizens?

    How does background checks on ALL sales of guns, public and private, infringe on the rights of the people?

    • Submitted by Jeff Klein on 04/16/2013 - 12:48 pm.


      Yeah, I guess if you just choose the phrase you like most and take it out of its context it does make your point.

    • Submitted by Paul Brandon on 04/16/2013 - 01:53 pm.

      The Constitution

      I also have a copy on my computer’s desktop; that makes it easy to search how the Constitution uses words.
      You can do a search on “the people” and “person”.
      You will find that when the authors of the Constitution wished to refer to individuals they used the term ‘person’, while when they were referring to a power reserved for the aggregate population of the States as units, they used the term “the people”.
      If they had intended the Second Amendment to apply to individuals, they would have said so by wording it ‘the rights of persons to own guns’. But that’s not what they said, so they were clearly referring to collective rights of the United States.

    • Submitted by Tom Anderson on 04/16/2013 - 10:02 pm.

      The same way a photo ID infringes on the right to vote

      It requires some effort, thus, apparently causes infringement. The scarier part is trying to figure out just who all will have access to the registration and background check information. It would seem like it should be public information. If not, given the ease at which drivers license information has been released to the public, such information would become public very soon. Paying for registration and background checks will cost money. Raising that money through more taxes infringes the right to purchase other things that the tax money would have been used for.

  4. Submitted by myles spicer on 04/16/2013 - 10:19 am.

    For more on this…

    I would invite your to read my Minnpost article of 1/8
    “It’s time to repeal the Second Amendment”

    • Submitted by Jeff Kline on 04/16/2013 - 11:26 am.

      By the way…

      Repeal or nullification/removal of the 2nd amendment, is like taking the bottom center most brick out of the way. The rest of them will fall as a result. No 1st amendment, and a full return to a dictatorship, and communism, totalitarianism, etc.

      Sorry; not for me and my family.

      • Submitted by Paul Udstrand on 04/16/2013 - 04:19 pm.

        An amendment ability is built into the constitution

        The constitution is designed be amended and has been. This is political document, not scripture. It’s been amended a number of times without catastrophic results.

  5. Submitted by jody rooney on 04/16/2013 - 10:27 am.

    The constiution doesn’t need change interpretation does

    Anyone who thinks that it should doesn’t understand the constitution. Probably the same folks who support the rewritten bible because they couldn’t understand the language of the King James version. I suppose for them we could do a “Constitution lite” translation written for their comprehension level and attention span.

    Frankly I think citizens should keep exercising their first amendment rights to petition the government for a redress of grievances. My grievance is that we glorify violence so being violent is a way to get notoriety.

    I would love to see an article on a violent gun attack read “A cowardly pathetic gunman with no hope of ever succeeding in the world and a little **** (fill in what ever word you think appropriate) attacked the weakest most vulnerable things he could find small children.” Call these folks what they are pathetic losers.

    Sorry off topic.

    The article was pretty funny.

    • Submitted by Jeff Kline on 04/16/2013 - 11:28 am.

      I agree.

      Not only funny but sad at the same time. My dad once quipped to me when we lived in southern California; “Son; the commies have invaded the US soil again. They seem to be breading like cockroaches over at UC Berkley. Pretty soon we’ll need a bigger can of roach spray!”.

    • Submitted by Greg Kapphahn on 04/16/2013 - 11:49 am.

      “Rewritten” Bible?

      You’re mixing apples with cumquats. The constitution was written in 18th-Century English. The Bible was written in Hebrew (which goes back 3000+ years), and First-Century Aramaic and Greek.

      The King James version, based considerably on Tyndale’s earlier version (for which Tyndale was burned at the stake),…

      was an attempt to translate the Vulgate translation (accomplished by the Catholic Church which used the oldest sources it could then find to translate the Hebrew, Greek, and Aramaic into LATIN),…

      into Shakespearean English.

      The King James version, itself, although it was revised multiple times, is still a very inaccurate translation, because the Latin Vulgate was an inaccurate translation.

      The more authoritative modern translations still have their inaccuracies, especially where they copy familiar language which the King James version copied from Tyndale,…

      using “the Lord” in place of printing the name of God (YHWH) throughout the Old Testament, for instance,…

      and translating the gender neutral language (referring to people in general) often found in the original Aramaic, Greek and Hebrew to be exclusively male because the King James translators specifically decided that there was no need to include women in those general references to God’s children,…

      and that “male and masculine” automatically included and provided proper examples for everyone else.

      Most important, over the centuries since the King James was produced, ancient manuscripts have been found which are older and more accurate than those used for the Latin Vulgate, the Vulgate manuscripts often being hundreds of years later than the earlier and more accurate ones more recently found.

      These more recently found older manuscripts have necessitated some serious revisions of King James in order to more accurately translate what the original authors of the Bible actually produced with their pens.

      All of which is just a very long way of saying that the King James translation needed to be re-worked and so substantially revised as to produce entirely new translations because it was so often WRONG,…

      and it’s Shakespearean English so easily misunderstood as to allow for agenda-driven interpreters to make it say an entire collection of things the original translators (not to mention to original authors in Hebrew, Aramaic and Greek) never intended.

      Perhaps the constitution will have some of the same issues 2800 years in the future, when the common language used on this planet will likely render it completely incomprehensible without translation,…

      and since, as is so clearly proven by our “gun-loving” friends, the Second Amendment is ALREADY being stretched to the breaking point by agenda-driven interpretations which have NO connection to its meaning in its original context.

    • Submitted by Lance Groth on 04/16/2013 - 12:54 pm.


      The Constitution has been changed 27 times. The changes are called “amendments”. No reason there can’t be more.

      • Submitted by Jeff Kline on 04/16/2013 - 02:41 pm.

        Yeah… you could.

        But, the 2nd’s “grammar” is such that you can’t “amend” this to try and negate it. Good luck with that. 🙂

        • Submitted by Lance Groth on 04/16/2013 - 04:16 pm.

          Didn’t mention it

          I didn’t reference the 2nd Amendment specifically. I was replying to the OP’s comment that the Constitution shouldn’t be changed.

          However, with respect to the 2nd Amendment, the “grammar” clearly indicates it was created so that armed citizens could be called up in states’ militias to repel threats to the young nation, as there was no standing army. So, my question to people such as the gentleman in the photograph holding the sign that says modern “assault” rifles are today’s muskets is, are you willing to be called up to defend the nation as the government sees fit?

          If you want the right as defined in the amendment, you must assume the duty as well, else the argument is specious.

        • Submitted by RB Holbrook on 04/16/2013 - 05:25 pm.

          How about this?

          Amendment XXVIII

          Section 1. The second article of amendment to the Constitution of the United States is hereby repealed.

          Section 2. The people shall have the right to keep and bear arms, subject to reasonable restrictions on that right by the state.

          • Submitted by Paul Brandon on 04/16/2013 - 07:00 pm.

            ‘The People’

            You would still be left with the problem of defining this term.
            If you rely on consistency with its use in the Constitution, it would still appear to refer to the states’ right to maintain national guards.
            What you (not me) would want it to state is:
            “Citizens shall have the right to own and carry firearms, subject to applicable State and Federal laws and restrictive regulations consistent with the Constitution.”

            • Submitted by RB Holbrook on 04/17/2013 - 11:48 am.

              The People

              I believe an amendment to clarify that arms bearing refers to the National Guard would be best. I was just tossing out a way to get rid of the confusing verbiage of the Amendment.

        • Submitted by Todd Hintz on 04/16/2013 - 11:11 pm.


          I doubt the intent will be to negate it, but rather clarify it for today’s society.

    • Submitted by myles spicer on 04/16/2013 - 02:52 pm.

      Not true!

      The Constitution is a living document, and our Founding Fathers made provision FOR CHANGE.
      It has been amended 27 times — and once the REPEAL a previous amendment (the 21st repealed the 18th Prohabition). There would not a precedent if we repealed the Second and replaced it with a new amendment still allowing ownership of guns, but now with certain stronger regulation. And amendment that would bring gun ownership innto the 21st Century, which is far different than the 1700s

  6. Submitted by Michael Friedman on 04/16/2013 - 10:30 am.

    State’s rights

    As much as anything can be considered clear from the language of the amendment, the most reasonable interpretation would seem to be that the federal government should have no laws and regulations whatsoever about weaponry but the states can do whatever they want in regard to regulation, including complete restriction. If a democratically run state can’t forbid weapons within its boundaries, one can hardly call it a “Free State.” The principle that federal constitutional protections for individuals are mandatory upon the states does not apply if there is no individual right involved. The Minnesota Constitution has several replications of the Bill of Rights, but it exclued the Second and the Tenth because it was nonsensical to restate rights pertaining to state vs federal as opposed to individual vs government. If the Second was intended as an individual right, not only would there be no reference to “free state” and “regulated”, but state constitutions would have included that right next to their own restatements about the right to a trial, and attorney, free speech, etc.

    Adopting such an analysis would retain the original principles and avoid useless arguments about historical change. (We all want freedom of the press to include web media, a technological development not forseen by the framers; most gun control supporters who complain that the right to weaponry only applies to muskets haven’t thought their logic through.) Debates about Militias are equally a distraction from the premise.

    • Submitted by Peder DeFor on 04/16/2013 - 11:35 am.

      14th Amendment

      The 14th Amendment incorporates the bill of rights into the states.

      • Submitted by Michael Friedman on 04/16/2013 - 04:36 pm.

        My point exactly

        Just as the 14th amendment is meaningless in regard to the 10th amendment, it has no meaning for the 2nd which was similarly pertaining to the state and not individual rights. The reason the 2nd amendment was considered necessary and not allowed to be implied as a state’s right through the 10th alone (i.e. omission) was because of the federal right to raise an army and declare war; the framers wanted it to be clear that this did not supplant a state’s right to arm militias. As for the need for state militias given the federal right to raise an army, one needs to refer back to Mr. Black’s earlier article concerning slave state fears of having their economic basis destroyed by the feds.

  7. Submitted by Greg Price on 04/16/2013 - 10:33 am.

    enjoyed the article…don’t necessarily agree with all of your take on this …but is well written and a good read. Looking forward to the rest of the series…

  8. Submitted by Paul Udstrand on 04/16/2013 - 10:41 am.

    Mr. Rovick, the Militias.

    There’s there’s this tendency by gun advocates to mix and mash documents and history. Here’s what we know: The Federalists won the constitutional debate, and armed insurrection is explicitly defined as treason by the Constitution. When the constitution was ratified the insurrectionist rationales (To the extent they existed) were jettisoned. Reading a bunch pre-constitution documents that purport explanations of the final constitution is a tricky business. The Confederation of States was dissolved because people changed their minds about a lot of things, one of which was the nature and utility of State Militias.

    The constitution does NOT build insurrection into the checks and balances. The Constitution lays out a democratic government and it’s that Democracy that guarantees our freedom, not the guns hanging in our closets. The Constitution establishes a system of recourse to the law, not recourse to your AR-15. You can pull quotes out of context all you want but the Civil War pretty much settled this point, and that was over a hundred years ago.

    The idea a Federalist like Thomas Jefferson built in a Constitutional requirement that states maintain militias so they could overthrow the government is simply incoherent. I suspect Eric will explore the real function of the militias in his next few articles.

    • Submitted by Jeff Kline on 04/16/2013 - 11:32 am.


      This is the exact crap they’re teaching my kids. Just plain WOW…. Well; If you guys think you’re all that, go start that next civil war and get rid of the “Representative form of Democracy”, and replace it with your full democracy. Go right ahead there.

    • Submitted by Peder DeFor on 04/16/2013 - 11:41 am.

      Thomas Jefferson

      Is this one of the quotes you don’t like?
      “The spirit of resistance to government is so valuable on certain occasions, that I wish it always to be kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the Atmosphere. ”
      Or how about this one, quoted by Jefferson?
      “False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. ”

      The Founders had just committed an armed rebellion of their own. There is no reason to think that they’d be horrified at the idea of people taking up arms to preserve their rights. In fact, the idea is absurd on the face of it.

      • Submitted by Paul Udstrand on 04/16/2013 - 04:17 pm.

        Jefferson had nothing to do with the 2nd Amendment

        He had nothing to do with it’s composition, nor did he cast a vote of any kind. There’s plenty of reason to believe the founders didn’t believe in insurrection. For one thing, classified it as treason in the constitution. Second, many of them actually didn’t believe that their fight with England had been an insurrection since they didn’t seek to overthrow a government. Finally, when faced with an insurrection (Shays rebellion) they dealt with it swiftly and violently.

        • Submitted by Peder DeFor on 04/16/2013 - 05:23 pm.


          There are plenty of quotes from the Founders where they discuss the idea that an armed citizenry would check an overzealous central government. That doesn’t mean that they supported every rebellion, everywhere, but they understood that there were times when it was appropriate.

          • Submitted by Paul Brandon on 04/16/2013 - 07:07 pm.

            There were many ‘founders’

            Are you referring to Thomas Paine, or Alexander Hamilton?
            You’ll get any answer that you want, since they disagreed on most issues.

            • Submitted by Peder DeFor on 04/17/2013 - 08:13 am.

              Take the Guns Away

              Ok Paul, can you find a high profile writer at the time who argued that guns should be restricted from the general populace? I’m not aware of any but that could simply be ignorance on my part. My understanding is that the idea of an armed populace was very popular. Can you give me some evidence that this wasn’t so?

              • Submitted by Paul Brandon on 04/17/2013 - 09:13 am.

                First principle

                of reasoned discourse–
                Those presenting an hypothesis have the onus of supporting it.
                And negatives are hard to prove.
                And my statement was not about gun restriction; it was about the desirability of armed insurrection. This is quite different from gun ownership, which was not questioned in a largely agrarian society.

    • Submitted by Neal Rovick on 04/16/2013 - 12:04 pm.

      It is my personal opinion that the phrasing of the second amendment provided a way of eliding various issues that individual states had at that time. It’s a very slippery phrasing. There are multiple reasons why any state might want an independent military, and it was not entirely clear at the beginning of the Union where the Union would be in a decade or two. Not all states or participants were 100% for a permanent union under a strong federal government.

      Interesting reading is to be had from William Rawle, in “A View of the Constitution”–in 1791 President Washington appointed Rawle the United States district attorney for Pennsylvania, in which capacity he prosecuted the leaders of the Whiskey Insurrection.

      As a contemporary of the age of writing of the Constitution, he seems to view the secession of the states from the Union a possibility.

      Chapter titled, “OF THE PERMANENCE OF THE UNION”.

      His point–secession is not necessarily insurrection.

      • Submitted by Jeff Kline on 04/16/2013 - 02:39 pm.

        Was written somewhere…

        I don’t remember where, but it was written and expressed that the exact “verbiage” of the 2nd amendment was written expressly so that you COULD NOT try and circumvent it or alter it. It’s pretty “Explicit” in terms, direction and emphasis. DO NOT ALTER OR FORNICATE ON THIS AMENDMENT.

        • Submitted by Neal Rovick on 04/16/2013 - 04:00 pm.

          Good luck in finding the “Do not alter” footnote in the Constitution.

          Well, for something so explicit and obvious, there certainly are a lot of people who read it differently or pick one part of the sentence and ignore the other.

          If there was an intent to have an unconditional right, why wasn’t the amendment written in the short form, “The right to keep and bear arms shall not be abridged.”

          Now that would be absolute and clear.

          But it wasn’t written that way. Instead, the “militia” modifier was brought into it.

          How is it that the “militia” part of the sentence apparently missing in so many “originalist'” copies of the Constitution?

        • Submitted by Pat Berg since 2011 on 04/16/2013 - 05:27 pm.

          Jeff, you might want to pull out your Funk and Wagnall’s

          and look up the definition of “fornicate”.

          Or maybe not . . . . . . . . .

    • Submitted by Kent Fralish on 04/22/2013 - 01:55 am.


      Thomas Jefferson was anything but a Federalist. They were trying to bring a monarchy back into the United States. Thomas Jefferson believed in Republicanism.

  9. Submitted by Jon Kingstad on 04/16/2013 - 11:03 am.

    Interpreting the Second Amendment is easy. . .

    If the NRA doesn’t like it, it “subverts fundamental Second Amendment rights” and is unconstitutional. That’s all you need to know. If you disagree, you’re wrong. End of debate or discussion.

  10. Submitted by Neal Rovick on 04/16/2013 - 11:12 am.

    Gun control inherent within militias (from Massachusetts Militia regulations)

    ….Every able-bodied male citizen, resident within this state, of the age of 18 years, and under the age of 45 years, excepting persons exempted by the following sections, idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime, shall be enrolled in the militia. Persons so convicted after after enrolment shall forthwith be disenrolled…..

    Sounds like a background check to me.

  11. Submitted by Peder DeFor on 04/16/2013 - 11:33 am.

    2nd Amendment

    I realize that the 2nd Amendment isn’t as clear as that part of the Constitution that keeps abortion legal throughout the country but it isn’t that difficult. A reasonable paraphrase would be “Whereas it is important to the State that citizens are proficient in the use of weaponry, they will be allowed to have and use weapons.” This would fall in line with the thoughts and ideas behind the intent of the thinkers at the time. They included the bit about militias because they were afraid that the central government would run roughshod over the states and they wanted some defense against that. Obviously that isn’t as big a concern today.
    Now, also obviously, there is strong pushback in the country today against the idea of having guns in the hands of regular citizens. My advice to those people is to use article five and amend the thing. Win the argument, convince people and change it. That’s what we should be doing about out-dated material. The idea that we can simply declare something to be obsolete and sweep it under the rug is dangerous to the very idea of a written constitution.

    • Submitted by Paul Brandon on 04/16/2013 - 03:59 pm.


      YOU may find this a ‘reasonable paraphrase’, but it’s not what the Second Amendment says.
      As you point out, the Virginians were more worried about the power of the Federal government in relation to the States than they were about the power of individuals vs. the States. Their counter was armed and regulated -state militias-; not armed and unregulated individuals.

      On another subject, those quoting Jefferson ought to give the date of the quotation.
      He said different things twenty years before the Revolution, during the Revolution, and 20 years after the Revolution.

    • Submitted by Neal Rovick on 04/16/2013 - 04:07 pm.

      Nice paraphrase–though it is odd how that pesky “well-regulated militia” part disappears.

      Don’t you think that the writers of that amendment would have omitted the part of the amendment that referred to the militia if they didn’t want it in there? It would have been so obvious and so easy.

      If wishes were horses, then beggars would ride. A+ for revision, though.

    • Submitted by Michael Friedman on 04/16/2013 - 04:50 pm.

      Very misleading

      The paraphrase deceptively and likely deliberately implies the modern meaning of State — as in the nation — when the amendment clearly had no such notion and was referring to entities like Delaware and Virginia. When the paraphrase (or the original amendment) is read correctly, it would up to the state to determine what’s important to itself, and not federally imposed. If it’s not important for Delaware and Virginia that their citizens have guns, why can’t they prohibit that? I’m for state’s rights here but all the conservative commentators seem to have abandoned the cause.

  12. Submitted by Brian Coss on 04/16/2013 - 11:59 am.

    Defining a Militia is a waste of time.

    This gun rights topic has obviously polarized this nation. Many for, many against, the idea that the time has come – our current gun laws are not enough – more new laws are needed.

    So as I read the postings of one side of the argument I can’t help but think it is a moot point. Yes, what comes out of the Supreme Court on any subject may be manipulated.
    We all understand that reality. But the price of freedom is eternal vigilance. It is not the place of the author of this article, or anyone else, to convince the people of this nation to unload this requirement for vigilance on some entity, such as a Government. This vigilance is a responsibility every citizen of this country needs to shoulder.

    In 1956 the country of Hungary fell under Soviet rule. Those who risked their lives to fight against this new Soviet “influence” were breaking laws, much like the laws talked about in this article. Were the Hungarian’s who took up arms against the Soviets criminals, or were they freedom fighters? Guess it depends on who you ask.

    In my view the 2A is not so much a license to fight our current Government (Governments do change over time) the 2A is more of deterrence towards change in Government that departs from the concept of a Government for the people, by the people.

    So you can talk about your definition of the word “militia” all you want, but I suspect 2A supporters are more concerned about the rights future militia(s) are fighting for.
    And they could care less how you define them in your article. Today, one side of this polarized nation views the current push to add more gun laws to the books as infringement of their right ,and like it or not, 2A supporters will continue to view this as a significant problem for generations to come.

  13. Submitted by Paul Udstrand on 04/16/2013 - 12:40 pm.


    It was James Madison, not Thomas Jefferson who wrote the Bill of Rights and the Second Amendment.

  14. Submitted by Bill Gleason on 04/16/2013 - 12:51 pm.

    An excellent article by the always readable Mr. Black

    Many questions, but probably best to wait til series completion.

    Looking forward to more.

  15. Submitted by Todd Hintz on 04/16/2013 - 04:45 pm.

    Gun Rights

    We already have a lot of gun restrictions and outright bans on the books. For example, run out and try to buy a machine gun, artillery piece, or nuke. So the issue isn’t “should there be restrictions” (there already are), but rather where exactly does that restriction lies. A BB gun is OK, but an anti aircraft gun is not OK. A cap gun is fine, but not a nuclear device.

    Where should that line be drawn?

  16. Submitted by Neal Krasnoff on 04/16/2013 - 05:55 pm.

    Required reading.

    Federalist Number 46, paragraph 9, starting with “Let a regular army, fully equal to the resources of the country, be formed…”;

    The Constitutions of the States, i.e. that of Maine: “All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it.” (Article I, Section 2)

    or of Minnesota:

    “Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.” (Article I, Section 1)

    Insurrectionists all, those whigs.

    • Submitted by Paul Udstrand on 04/16/2013 - 09:48 pm.

      None of these quotes support insurrection

      The first quote refers to establishment and maintenance of a federal military force the Main and Minnesota quotes simply define the nature of Democracy.

      I’ve been looking at the comments here and one thing is very obvious, many of the pro-insurrection commentors don’t seem to understand what kind of government the Constitution actually establishes and why. The only justification for insurrection or rebellion would be the collapse of the constitution and the emergence of a totalitarian state. Do people really the authors of the constitution were stupid enough to think that they had to grant the right of insurrection explicitly in the constitution? So what? if it’s not in there everyone would just have to live a totalitarian government? We were gonna rebel but it’s not in the constitution so I guess we’re stuck. Look, the Constitution itself you shield again tyranny; NOTHING in the constitution legalizes armed insurrection.

      • Submitted by Peder DeFor on 04/17/2013 - 08:17 am.

        Nothing Has to Legalize It

        They didn’t need to put some kind of clause in the Constitution that would legalize rebellion in order to understand that it might some day be necessary. They certainly hoped it never would be (as do I). But many, many of them thought that the presence of an armed populace would keep the state from being tyrannical.
        I hope that the sign outside my house advertising the security system here will be a deterrent to any would be burglar. That doesn’t meant that I hope someone tests the system.

        • Submitted by Paul Udstrand on 04/17/2013 - 10:32 am.



          “They didn’t need to put some kind of clause in the Constitution that would legalize rebellion in order to understand that it might some day be necessary”

          Exactly, yet your entire argument claims that’s exactly what they did. These weren’t perfect, but they also weren’t idiots and they would waste their time putting something in the Constitution that didn’t need to be there.

          • Submitted by Peder DeFor on 04/17/2013 - 03:59 pm.


            My argument has nothing whatsoever to do with legalizing rebellion. They believed that the presence of an armed citizenry would help keep government from becoming tyrannical. (And I know that my name is unusual but it’s right there for reference.)

            • Submitted by Paul Udstrand on 04/18/2013 - 01:56 pm.

              Follow your own logic


              The only way an armed populace could keep a tyrannical government in check is via an armed rebellion or threat of armed rebellion. Again, the constitution clearly declares that such rebellion is treason and illegal. You can’t claim that the threat armed rebellion is some kind of constitutionally guaranteed check on tyranny when the constitution clearly classifies such rebellions as treason.

  17. Submitted by Ray Schoch on 04/16/2013 - 07:18 pm.

    Obviously a powerful conversation-starter

    I’d be amazed if some sort of agreement or consensus came out of the various commentaries on Eric’s piece. My own personal opinion, for what little weight it carries, is pretty much like Eric’s, at least as he’s so far expressed it: the 2nd Amendment is a mess. It doesn’t seem at all clear to me that the Amendment, as written, supports the unconditional possession and carrying of firearms of any and all kinds by any and all citizens who might wish to do so, nor does it seem clear to me that a laundry list of prohibitions and restrictions on the individual right to bear arms would necessarily pass constitutional muster.

    I have for many years regarded the 2nd Amendment as one of the relatively few major errors made by the Founders when they put together the Constitution and the Bill of Rights. There are some others, including the “3/5ths Compromise” that allowed slavery to continue. That a new nation supposedly founded upon the principle of individual liberty could simultaneously build tolerance for individual slavery into its governing document is an exercise in cognitive dissonance on a society-wide scale that ought to astonish far more people than it apparently does. But that’s beside the point of Eric’s piece and the subsequent commentary.

    I’d say the 2nd Amendment was a mistake to begin with. Not a socialist plot to enslave all good and patriotic Americans, not an attempt to build “cowboy mentality and morality” into our governmental system. It’s simply a mistake, largely because it has been written poorly — perhaps more poorly than any other segment of the Bill of Rights. Teachers of writing or language who are looking for lessons to present to students on “Why words matter,” or “Why you (students) need to be able to express yourself clearly,” need look no further than this very brief passage called the 2nd Amendment to see the potential effects of failing to present ideas clearly. The intensity of the arguments presented just in the commentary above illustrates quite clearly (and ironically) the LACK of clarity in the Amendment’s language.

    Interesting as Neal Rovick’s point is regarding William Rawle, it’s rendered moot by subsequent events, especially the one at Appomattox Court House on April 9th, 1865. Part of the reason why there’s such impassioned argument from both sides regarding gun control (something of an oxymoronic term, I think) is that the Amendment is so vague that it can be interpreted in numerous ways. What isn’t vague at all is that federal law trumps state law. That argument was settled on Mr. Grant’s terms, not Mr. Lee’s.

    I’m looking forward to the remaining installments.

    • Submitted by Paul Brandon on 04/17/2013 - 09:15 am.


      The Second Amendment was clearly a compromise;
      one definition of a good compromise is that -no one- likes it.

  18. Submitted by Joe Musich on 04/16/2013 - 08:46 pm.

    So some are still arguing the…

    Whiskey rebellion.

    But you can’t always get what you want says the haunting words of Mick Jagger. But if you try real hard you’ll get what you need is where the discussion should begin. But Ted Nugent and his friends got stuck in their journey to the center of their minds.

  19. Submitted by William Heino Sr. on 02/17/2018 - 09:30 pm.

    2nd Amendment

    I received a one page response from our President, dated Feb. 12, 2018, regarding his understanding of the Constitution, replying to my letter of 7/29/2017, regarding my understanding of our Constitution.——–

    His understanding,…..

    “Thank you for taking the time to express your views regarding the Second Amendment. ——

    As President, I have no higher obligation than to protect the safety of America and its people. In these efforts, my Administration will always be guided by the wisdom of our Constitution, which ensures the right of individuals to keep and bear arms. The Founders enshrined this protection in the Second Amendment because they understood that the ability of law-abiding people to defend themselves and their families is a hallmark of a free and sovereign people. ——–

    Undermining our Second Amendment rights will not enhance our safety. Rather, we must redouble our efforts to prevent criminals from obtaining and using firearms to harm innocent Americans. My administration will always enforce Federal law and work with State and local officials to keep firearms out of the wrong hands and protect Americans from violent criminals.”——-

    The Second Amendment …”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.”——-

    Contrary to the Presidents misunderstanding of words, and the Second Amendment, substituting the word “individuals” for “people.,” there is no mention “which ensures the right of individuals” to keep and bear arms.” The fact is “individuals” is not mentioned in our Constitution. ———-

    My letter to him stated my argument. The Constitution mentions “person/s” 49 times (Articles of Confederation 11 times), to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. ————-

    Whereas in the Second Amendment, reference to “person/s” is not to be found. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining Second Amendment’s right to bear arms as a “person”? The need and reason for “A well regulated militia, …” exactly… because we fight among ourselves.———

    The president was not elected because he was an “individual”, but “..guided by the wisdom of our Constitution,..” on a Constitutional legal standing as to a “person.” Elected on the very word he does not believe in. 13 Constitutional references conditioning a “person” to the roll of the President of the United States. A condition the President ignores, refusing to acknowledge meaning of the Second Amendment or “the wisdom of our Constitution,..” relating to it’s 49 references to “person/s.”———-

    “…The Person having the greatest Number of Votes shall be the President…” (Article 2 Section 1)
    “…No person except a natural born Citizen or a Citizen,…shall be eligible to the Office of
    President” (Article 2 Section 1)
    “…they shall name in their ballots the person voted for as President,…” (Amendment XII)
    “…the person voted for as Vice-President,…” (Amendment XII)
    “…all persons voted for as President,….” (Amendment XII)
    “…all persons voted for as Vice-President…” (Amendment XII)…”
    “…The person having the greatest Number of votes for President, …” (Amendment XII)
    “…But no person constitutionally ineligible to the Office of President (Amendment XII)
    “…No person shall be elected to the office of the President…” (Amendment XXII Section1)
    “…and no person who has held the office of President,…” (Amendment XXII Section1)
    “ which some other person was elected President…” (Amendment XXII Section1)
    “…shall not apply to any person holding the office of President…” (Amendment XXII Section1)
    “..prevent any person who may be holding the office of President…” (Amendment XXII Section1)

    “When government-adopted texts are given new meaning, the law is changed; and changing written law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and elected executive officials and their delegates.” (Reading Law.Antonin Scalia/Bryan A. Garner)——

    The President was so interested in my letter that he took the time out of his busy schedule to look up my middle name when addressing his reply. He did not have to go to all that trouble.

  20. Submitted by Tim Walker on 04/16/2013 - 03:59 pm.

    So …

    Were all 27 previous amendments to the U.S. Constitution also the actions of liberals (communists)?

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