The Second Amendment is unique in American law in that virtually all case law and all commentary on the subject are wrong. Reasons for the controversy over the Second Amendment are politics and reliance on its erroneous case law and flawed commentary as authority. In its recent decision in McDonald v. City of Chicago, the Supreme Court overturned both United States v. Cruikshank (1876) and Presser v. Illinois (1886) and correctly incorporated the Second Amendment through the Fourteenth Amendment to apply to states and localities. However, the right that was incorporated was the right of the individual to possess and carry weapons that was created by the Court in District of Columbia v. Heller (2008) and not the original and, therefore, correct right of the general populace to store weapons and render military service as the Organized State Militia that is today known as the National Guard, which is the right that the Founders drafted in 1789 and the states ratified and the nation adopted in 1791. Therefore, as strange as it might sound, in McDonald, the correct holding of the Supreme Court should have been that a state or local law that regulates the possession and carriage of weapons is Constitutional; that the Second Amendment right that must be incorporated through the Fourteenth Amendment to apply to states and localities is the right of the general populace to store weapons and render military service as the Organized State Militia that is known today as the National Guard; and that the Second Amendment has nothing to do with the private possession and carriage of weapons.
To paraphrase Justice Jackson from many years ago, the Supreme Court's interpretation of the Second Amendment is not final because it is correct. It is correct only because it is final, because it is actually and in fact grossly incorrect and erroneous and is not in accordance with the original and, therefore, correct interpretation of the Second Amendment as understood and as written by the Framers. When the truth about the original and, therefore, correct interpretation of the Second Amendment as understood and as written by the Framers becomes fully realized, the Supreme Court's decision in Heller, which formed the basis of its substantively incorrect decision in McDonald, will take its place with cases such as Roe v. Wade and Kelo v. City of New London among the most abominable in Supreme Court history.
Both sides in McDonald joined the Supreme Court in approaching the case from a fundamental misunderstanding of the Second Amendment. Heller marked the first time since United States v. Miller (1939) that the Court ruled directly and specifically on the Second Amendment. The Court's opinion in Heller revealed that some members of the Court have a bunker mentality about the Second Amendment, and all nine justices, those of both the dissent and the majority, misinterpreted the Second Amendment. Nevertheless, the District of Columbia in Heller and Chicago in McDonald were represented by attorneys who might be fine attorneys otherwise but were totally incompetent with regard to the Second Amendment.
In addition to Heller's fallacious individual-right argument, which the Court ended up buying, the District of Columbia's arguments also were fallacious. Its first point was an articulation of the standard set in Miller. In that case, the Court held that the Second Amendment protects the possession or use of a weapon if the possession or use “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” This holding has often been distorted by those who cite it as stating that the Second Amendment protects the possession or use of weapons that are reasonably related to the preservation or efficiency of a well regulated Militia. This distortion makes the actual weapon itself the focus of the analysis. However, the actual holding made the possession or use of the weapon -- and not the actual weapon itself -- the focus of the analysis. But the irony of Miller is that the holding, even when it is not distorted, is incorrect. The Miller Court was negligent in four respects. One was its failure to articulate the statutory definition of the Militia that had been in effect since 1903. A second was its failure to articulate the meaning of “people,” as opposed to “persons” and “person”, in the Constitution. Third, the Court failed to articulate that modern Militia law provided for the public storage of weapons, while the Court touched on the keeping of arms only by characterizing the old Militia as being composed of able-bodied males who provided their own arms. And most importantly, the Court interpreted “bear arms” to mean “carry weapons.” It failed to point out, by means of The Federalist Papers, the Anti-Federalist papers, and other Eighteenth Century writings, that “bear arms” means “render military service” and does not mean “carry weapons.”
The District of Columbia's second incorrect point was its claim that even if the Second Amendment guaranteed an individual right to possess and carry weapons, it had never been incorporated through the Fourteenth Amendment to apply to the states. One cannot argue that the Second Amendment does not guarantee individual possession and carriage of weapons but then argue that even if it did, it does not apply to the states. This argument concedes that the Second Amendment might indeed guarantee an individual right to possess and carry weapons, which it does not, and uses the lack of incorporation as a safety-net argument against the Court's applying it to the District of Columbia, which is, in this context, the functional equivalent of a state. But more importantly, the District of Columbia walked on thin ice by bringing up the issue of incorporation, simply because the Court can, with the stroke of a pen, incorporate any Constitutional provision that it wishes to. The Court could have thrown the District of Columbia's argument right back in its face by stating that if the Second Amendment guarantees an individual right to possess and carry weapons, it was time for such right to be incorporated through the Fourteenth Amendment to apply to the states, simply because overturning previous case law is how all previously unincorporated amendments were incorporated through the Fourteenth Amendment to apply to states and localities. The Court did exactly this two years later in McDonald.
And third, the District of Columbia stated that the gun-control law at issue should be upheld because it is good public policy. The Second Amendment has nothing to do with public policy. It is a statement of Constitutional law. Whether or not a gun-control law is good public policy has absolutely nothing to do with the substance of the Second Amendment.
Proper study of the Second Amendment does not adhere to false theories or attempt the futile task of trying to reconcile the “Militia Clause” and the “Bear Arms Clause,” as the individual-right and state-right theories try to do (and the Supreme Court has tried to do), and reveals that the original and correct understanding of the Second Amendment runs counter to virtually all case law and all commentary on the subject. Despite the fact that highly trained attorneys and even the justices of the highest court in the nation do not understand the Second Amendment, the Second Amendment is what it is, which is what it always has been, no matter what jurists, scholars, and activists attempt to make it out to be. Correct interpretation of the Second Amendment requires defining its actual terms. And in accordance with Constitutional originalism, definitions of the terms must be as they were understood by the Founders and not as they are understood by Twenty-First Century Americans. Even a brief summary of the original and correct interpretation of the Second Amendment contains irrefutable documentary evidence that was never brought to the attention of the Supreme Court by the incompetent (with regard to the Second Amendment) attorneys that have argued Second Amendment cases before it. Therefore, any disagreement with this interpretation of the Second Amendment (which is that of the Founders) means disagreeing with the Founders. Everyone is entitled to his own opinion on guns, but no one is entitled to his own historical facts, no matter what the Supreme Court says.
Understanding the Second Amendment requires understanding four points. The first point is that “A well regulated Militia” refers to the Organized State Militia that is today known as the National Guard and not to individuals who are proficient in the use of weapons or to the entire population. The correct connotation of “A well regulated Militia” can be ascertained from numerous writings from the Eighteenth Century, including The Federalist Papers, the Anti-Federalist papers, and the Articles of Confederation. Although the National Guard was not codified until 1903, long after the employment of “A well regulated Militia” in the Second Amendment, it is a term that is the statutory definition of the Organized State Militia, an entity that is older than even the Second Amendment itself. “A well regulated Militia” is repeatedly used in The Federalist Papers (Number 29), the Anti-Federalist Papers (“John DeWitt V” and “Aristides”), and Luther Martin's “Genuine Information” to refer to the Article I Militia in the Constitution. And 10 U.S.C. 101 and 32 U.S.C. 101 explicitly state that the National Guard is the Article I Militia. Therefore, using the mathematical principle that if A equals B and C equals B, then A equals C, if “A well regulated Militia” equals the Article I Militia and the National Guard equals the Article I Militia, then “A well regulated Militia” must equal the National Guard.
The 1792 Militia Act was abolished in 1903. The definition of the Militia, which had been codified by that statute, has been modified by the subsequent statutes that have been adopted in place of the 1792 statute. “Militia” has multiple meanings based on context, but that is only in the colloquial sense. In the legal and statutory sense, “Militia” means a very specific thing, as defined by the United States Code. The National Guard is indeed the Article I Militia. It is the same entity as the Organized State Militia of 1789 with a modern name. The Dick Act of 1903 codified the Organized State Militia as the National Guard. 10 U.S.C. 101 and 32 U.S.C. 101 (as well as U.S.C. 311) have been on the books for years and are in accordance with Congress's Article I power to organize the Militia.
Since 1916, the National Guard has been part of the Army only when it is in the service of the United States. When it is not in the service of the United States, it is the Organized State Militia under the auspices of the state. This point was affirmed in both Dukakis v. United States Department of Defense (1988-1989), which was denied a hearing by the Supreme Court, and Perpich v. Department of Defense (1987-1990), which was heard and affirmed by the Supreme Court in a case that it actually got right.
The next point is that “people” refers to the general populace and not to individuals. In the unamended Constitution, the original amendments, and the modern amendments, the Framers used “people” to describe the general populace, “persons” to describe individuals, and “person” to describe an individual. The unamended Constitution uses “people” 2 times, uses “persons” 4 times, and uses “person” 16 times. One must agree that although “persons” is the plural of “person,” “people” must mean something different than “persons,” or the Founders would not have used both terms. For example, in the unamended Constitution, the right of electing House members is that of the people (the general populace). Election by the people means by the general populace. After all, not every individual votes for the winner of the election, not every individual votes in the election, and not every individual is even eligible to vote in the election to begin with.
The Framers were quite precise in their words. For example, a look into the evolution of the First Amendment reveals that Madison evidently incorrectly cast the rights of free speech and freedom to write as rights of the people (the general populace). That is why the First Congress, evidently seeing the error in Madison's words, recast these rights as general rights and not as rights of the people (the general populace) specifically. Meanwhile, it kept the rights of assembly and petition as rights of the people (the general populace). It is impossible for a person to assemble. An assembly, by definition, cannot be an individual. (Although it is quite feasible for “individuals” to assemble, such connotation is not in accordance with the rest of the Constitution and would be a gross aberration in usage.) A look at predecessor provisions in the state constitutions and proposed amendments reveals that the right of assembly was for the purpose of petitioning the government. (The right of one person to petition can be easily satisfied by free speech and free press, which are general and, therefore, individual rights.)
The Fourth Amendment uses “people” to refer to the general populace and “persons” to refer to individuals.vIt is not plausible that the Framers would use “persons” twice to mean “individuals” after having previously used “people” to mean “individuals.” That is why in the Fifth Amendment, which encompasses the rights of an accused individual, “person” is used twice, and “people” is not used at all.
In addition, since “people” refers to the general populace and not to individuals, “keep” refers to the storage of weapons by the general populace and not to the private possession of weapons by individuals. This is not inconsistent with the rest of the Constitution. The term “keep” is used twice in the unamended Constitution; in neither Article I, Section 5, Clause 3 nor Article I, Section 10, Clause 3 does “keep” in any way connote personal private possession. In the Second Amendment, “keep” refers to the storage of weapons by the general populace. This connotation of “keep” is perpetuated in modern state statutes that provide for the keeping (storage) of National Guard weapons in public depositories (armories).
As far as the public storage of weapons two centuries ago is concerned, “An Act directing a detachment from the Militia of the United States, and for erecting certain Arsenals” (March 3, 1803) appropriated money for arsenals that the President was to cause “to be furnished with such arms, ammunition, and military stores as he may deem necessary.” “An Act making provision for arming and equipping the whole body of the Militia of the United States” (April 23, 1808) authorized the President “to purchase sites for, and erect such additional arsenals and manufactories of arms, as he may deem expedient, under the limitations and restrictions now provided by law[.]” And Gen. Knox spoke before the House on Dec. 10, 1794, on the deficiencies of the 1792 Militia Act. Among his statements were, “The deficiency cannot be supplied from Europe under the present circumstances. The only solid resource to obtain a supply, is the establishment of manufactories in each State.” He stated also, “The deficiency of arms cannot be more forcibly exemplified than that, to arm the militia lately called into service, estimated at fifteen thousand, the number of ten thousand arms have been issued from the public Arsenals.”
Fourth, “bear Arms” means “render military service” and not “carry weapons.” Conclusive evidence of this term's true meaning comes from The Federalist Papers, the Anti-Federalist papers, and early state constitutions that were adopted before the United States Constitution. In The Federalist 46, James Madison, the original author of the Second Amendment, clearly states that one-quarter of the population is “able to bear arms.” (He states that the 25,000-30,000 persons (“one hundredth part of the whole number of souls”) in a regular army are “one twenty-fifth part of the number able to bear arms”.) This makes sense only when it means that one quarter of the population is “able to render military service” and can indicate only that one quarter of the population -- that is, those who were able-bodied males, since they were the ones who were “able to bear arms” (“able to render military service”) -- is “able to bear arms,” as in “able to render military service.” If Madison's connotation of “able to bear arms” were “able to carry weapons”, then he would be saying that only one quarter of the population is “able to carry weapons”. That connotation would make for a population in which three quarters are so physically handicapped that they are not “able to carry weapons”. Even the three quarters of the population (women, children, and the aged) that are not “able to bear arms” (“able to render military service”) would be “able to carry weapons” as long as they have the mere ability to grip and transport a gun (that is, anyone who had hands that could grip and was able to walk would have been “able to carry weapons”). It is simply not plausible that three quarters of Americans were that severely handicapped back in 1787 or 1788.
In addition, as only one example of many, the Virginia Proposed Declaration of Rights (June 27, 1788), which was intended to be an amendment to the United States Constitution, stated, “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Since it would be absurd for the government to require a person to pay another person to carry weapons for the personal use of the former in the former's stead, the only plausible definition of “bear arms” in Virginia, the land of Thomas Jefferson and James Madison, was “render military service”.
Finally, in terms of the “Bill of Rights,” there are no such words on that document. It is entitled simply “Amendments to the Constitution of the United States.” On the actual original document in Washington, D.C., that contains the amendments that were sent to the states for ratification in 1789, there are actually 12 original amendments. The first one (relevant to increases in representation in the House of Representatives) was never ratified, and the “second” amendment (prohibiting members of Congress from increasing their own pay) was not ratified until 1992. (It is now the Twenty-Seventh Amendment.) These are not individual rights. In addition, this means that the Second Amendment was actually the “fourth” amendment as proposed to the states. This refutes the assertion by many individual-right proponents that the Second Amendment is such because it is second in importance to the First Amendment (unless an individual-right proponent wants to argue that having a Congress that cannot give itself a pay raise is a more valuable “individual” right than that of possessing and carrying a weapon).
The truth about the Second Amendment signifies that gun control is a public-policy issue and not a justiciable one. The Second Amendment has absolutely no relevance to gun control. For too long, gun control has been incorrectly dichotomized into policy and law. Part of the debate has focused on what, if any, gun-control laws would be good public policy. But part of the debate has incorrectly focused on the extent to which guns can be regulated without violating a supposed individual Second Amendment right to possess and carry weapons. However, proof that the Second Amendment does not guarantee any individual right to possess and carry weapons can move the debate on gun control out of its erroneous context of Constitutional law and leave it solely in its correct context of public policy. The nation could then focus exclusively on what laws would be in the public interest without worrying that a law that might be good policy might be in violation of the Second Amendment or the Fourteenth Amendment. (Whether or not the Ninth Amendment, the Tenth Amendment, or any other part of the Constitution besides the Second Amendment and the Fourteenth Amendment guarantees an individual right to possess and carry weapons is completely outside the scope of the Second Amendment.)
John Massaro is the writer-editor of SoapboxWeekly.com and is the author of No Guarantee of a Gun: How and Why the Second Amendment Means Exactly What It Says (AuthorHouse, 2009). The book can be purchased at sites such as amazon.com and barnesandnoble.com or for a much lower price at authorhouse.com.
From The Progressive Populist, September 1, 2010
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