The Second Amendment Does Not Guarantee Gun Ownership

October 6, 2017

By Arturo Castañares / Publisher and CEO

Photo/Kenneth Lu

In the wake of the horrific shooting in Las Vegas last weekend, gun control has again become a hotly debated topic from San Diego to Washington, D.C. Even before the victims were buried, the NRA made it clear it will not support any new gun control legislation, instead calling for a national law to allow more people to carry guns.

Of course, the go-to provision in the Constitution that the NRA points to is the Bill of Rights’ Second Amendment; the holy scripture for gun advocates that, they argue, enshrined our individual rights to keep and bear arms. Some argue it was so important to the framers of the Constitution that it is second only to the rights of freedom of speech, the press, and religion.

But, the interpretation of the Second Amendment as a nearly untouchable shroud protecting Americans’ right to buy, keep, use, and even carry guns is a relatively new view of the law, becoming common just 40 years ago.

Very little was written by the Founding Fathers about the right to possess guns. In fact, many of the arguments attributed to colonial leaders by the NRA are largely misquoted, inaccurate, or flat out wrong.

For example, the NRA sells t-shirts with the quote, “One loves to possess arms”, attributed to Thomas Jefferson, one of the Constitution’s authors and a leading intellectual of the time. The quote really is from Jefferson, in a letter he wrote to George Washington in 1796.

The problem is that Jefferson was not talking about guns, but about old letters he was collecting to have handy in case he was criticized for a decision he had made as Secretary of State before becoming Washington’s Vice-President. The “arms” he was referring to were facts, not guns.

The NRA’s even more popular quote comes from Patrick Henry, a leader of the Revolutionary War, and most famous for declaring, “Give me liberty, or give me death” in 1775 before the Declaration of Independence was written.

Patrick Henry is quoted as having said, “That every man be armed.” The quote is accurate, but it was not referring to arming every man in the country. The full quote is, “The great object is, that every man be armed. At a very great cost, we shall be doubly armed.”

Henry was arguing, during Virginia’s ratification of the Constitution in 1788, that the cost to arm all troops by the new national government and state militias, would be too high. The irony is he was arguing against arming all men, not for it.

The context of these colonial arguments about guns was that the balance of power between the new federal government and states would be well-regulated, volunteer state militias. At the time, all white men between 16 and 60 served in the militia. Their organized, armed rebellion is what won our independence and created the America we love.

So, what then, does the Second Amendment actually say?

“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.”
In fact, James Madison, our fourth President and an ardent supporter for a stronger federal government, was the one that proposed the original language for what would become the Second Amendment. Nowhere in Madison’s notes from the constitutional conventions does he mention the protection of individual gun owner rights. None of the 13 states’ ratifying meetings declared such a right when they approved the Constitution that, at the time, didn’t include the ten amendments that would become the Bill of Rights.

State and local laws throughout the country regulated guns for nearly 200 years without any major court action. Between 1876 and 1939, four gun cases went before the Supreme Court, and not once did the Court rule that the Second Amendment protected individual gun rights outside of the context of a militia.

The modern interpretation of the Second Amendment only came about in the 1970s after conservative gun advocates took over the National Rifle Association.

The NRA was started by Union officers after the Civil War to provide shooting training and competitions. The NRA supported the first federal gun law in 1934, which limited the use of machine guns used by mobsters and bank robbers.

But by the late 1970s, a revolt within the NRA turned it into a political machine that sought to change the debate among politicians. Although the 1972 Republican platform supported gun control laws, by 1980, the GOP was opposed to federal gun registrations, and began arguing that the Second Amendment must be preserved to protect the right to keep and bear arms.

Throughout the 1980s and 90s, Republicans in Washington began seeding federal policies with more aggressive gun advocacy. In 2001, when George W. Bush became President, his new Attorney General John Ashcroft formally changed the federal government’s position, announcing that the “text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.”

A constant stream of conservative legal filings, articles, and news interviews has also affected the public’s perception of the meaning of the Amendment.

While in 1959, 60% of Americans favored outlawing guns, by 2012 only 24% did. Today, more than 73% of Americans believe they have an absolute right to own guns.

The NRA’s new headquarters just outside Washington, D.C, proudly displays a sign on the wall reading, “…the right of the people to keep and bear Arms, shall not be infringed,” without the first part of the paragraph, of course.

Under a plain reading of the complete language, only those in an organized militia should have the right to keep and bear arms.
Whether that’s military personnel, reservists, or even volunteer soldiers trained in case of war or insurrection, some sort of well-regulated organization seems the most logical meaning of the Second Amendment’s protections.

Pointing only to the convenient portion of the Amendment’s language has led to a proliferation of guns, increased violence, and senseless shootings like last Sundays’ massacre in Las Vegas.

It’s time to take a hard look at our gun laws, starting with an honest reading of the Second Amendment, so we can move toward a safer future for our children.

Falsifying our past will only make America more dangerous.

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