The Second Amendment to the United States Constitution protected the people's right to safeguard and bear arms and was adopted on 15 December 1791, as part of the first ten amendments contained in Bill of Rights. The United States Supreme Court has ruled that the property rights of individuals to defend themselves, but "Like most rights, the rights guaranteed by the Second Amendment are endless...". It is "... not the right to store and carry any weapon in any way and for any purpose." "Nothing we think should be done to doubt the prolonged ban on the possession of firearms by criminals and mentally ill people, or laws that prohibit the carrying of firearms in sensitive places such as schools and government buildings, or laws that impose conditions and qualifications commercial arms sales "while also ruling that the right is unlimited and does not prohibit all regulations of firearms or similar devices. State and local governments are limited to the same extent as the federal government from violating this right, in accordance with the incorporation of the Bill of Rights.
The Second Amendment was based in part on the right to safeguard and bear weapons in English common law and was influenced by the British Bill of Rights in 1689. Sir William Blackstone described this right as an additional right, endorsing the natural rights of self-defense and resistance to oppression, civilians to act together in the defense of the country.
While James Monroe and John Adams backed the ratified Constitution, the most influential framer was James Madison. In Federalist No. 46, Madison writes how federal troops can be guarded by state militia, "a permanent force... will be opposed by a militia." He argued that the state militia "would be able to ward off the danger" of the federal troops, "It may be doubtful whether the militias are thus able to be conquered by the proportion of such regular forces." He confidently compared the United States federal government with European empires, which he painfully described as "afraid to trust people with guns." He assured his fellow citizens that they should not be afraid of their government because "in addition to the armed profits, which the Americans have over the people in almost every other country, the existence of subordinate governments, where the people are attached, and where militia officers are appointed, against ambitious companies ".
In January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without imposing amendments. Some special amendments are proposed, but not adopted at the time the Constitution is ratified. For example, the Pennsylvania Convention argues fifteen amendments, one of which concerns the right of the people to be armed, the other with the militia. The Massachusetts Convention also ratified the Constitution with a list of attached amendment proposals. Ultimately, the ratification conventions are shared equally between those who support and challenge the Constitution that the federalists agree to amend to guarantee ratification.
In United States v. Cruikshank (1876), the United States Supreme Court ruled that, "The right to bear arms is not granted by the Constitution, both of which are independent of the instrument for its existence, the Second Amendment means nothing more than that will not be violated by Congress; has no effect other than to limit the powers of the National Government "and thereby limit the scope of protection of the Second Amendment to the federal government. In the United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect the types of weapons that did not have "a reasonable relationship with the preservation or efficiency of the well-regulated militia".
In the twenty-first century, the amendment has undergone a renewed academic investigation and legal interest. In District of Columbia v. Heller (2008), the Supreme Court handed down an important decision that held back amendments that protected a person's right to keep weapons at home in self-defense. This is the first time in American history that the Court has decided the Second Amendment guarantees the right of an individual to possess a weapon. In McDonald v. Chicago (2010), the Court clarified earlier decisions limiting the impact of amendments to restrictions on the federal government, expressly declaring that the Fourth Amendment Process Clause incorporates the Second Amendment to state and local governments. In Caetano v. Massachusetts (2016), the Supreme Court reaffirmed the earlier ruling that "the Second Amendment extends, prima facie, for all instruments that are weapons that can be borne, even those not found at the time of establishment" and that its protection is not limited to " weapons useful in battle ".
Because of this decision, the debate between various organizations regarding arms control and weapons rights continues.
Video Second Amendment to the United States Constitution
Teks
There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between reset and ratified copies, signed copies, and published transcripts. The significance (or lack thereof) of these differences has been a source of debate over the meaning and interpretation of the amendments, in particular on the importance of the preliminary clause.
One version passed by Congress, and a slightly different version was ratified. As endorsed by Congress and deposited in the National Archives, with the remaining original handwritten copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:
Well-regulated militia, necessary for the security of a free State, the right of the people to safeguard and bear Weapons, will not be violated.
Here are the amendments ratified by America and endorsed by Thomas Jefferson, Secretary of State:
A well-regulated militia is necessary for the security of a free country, the right of the people to guard and carry arms will not be violated.
Maps Second Amendment to the United States Constitution
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The Influence of the British Bill of Rights in 1689
The right to bear weapons in British history is considered in English law as an additional right of subordinates to primary rights for personal security, personal freedom, and private property. According to Sir William Blackstone, "The final right... the last of the subject... is that it has a weapon for their [defense], according to their condition and level, and as permitted by law. legislation, and is indeed a public benefit, under the applicable limits , of the natural right of resistance and self-preservation, when public and legal sanctions are found not sufficient to withstand violence of oppression. "
The English Bill of Rights of 1689 emerged from a turbulent period in British politics in which two issues were the main source of conflict: the King's authority reigned without the approval of Parliament, and the role of Catholics in a more Protestant country. In the end, Catholic James II was overthrown in the Great Revolution, and his successors, Protestant William III and Mary II, accepted the conditions codified in the bill. One of the problems Bill settled was the King's authority to disarm him, after James II had tried to disarm Protestant weapons, and had argued with Parliament about his intention to keep a permanent (or permanent) army. The bill states that it acts to restore "ancient rights" trampled by James II, although some argue that the British Bill of Rights created a new right to possess weapons, developed from the task of possessing weapons. In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the right to English at the time of the ratification of the British Bill of Rights was "clearly an individual right, had nothing to do with militia services" and that it was a right not to disarmed by the Crown and not granting new rights to possess weapons.
The text of the English Bill of Rights of 1689 includes a language that protects the Protestant right against disarmament by the Crown. This document states: "That Protestant Subjects may have Weapons for their Defense in accordance with their Rules and as permitted by Law." It also contains texts that aspire to bind the parliament of the future, although under British constitutional law no Parliament can bind Parliament later. However, the British Bill of Rights remains an important constitutional document, more to mention Parliamentary rights to monarchy than its clause on the right to own weapons.
The statement in the British Bill of Rights on the right to bear arms is often quoted only in the section where it is written as above and not in the full context. In the full context it is clear that the Bill affirms the Protestant's right not to be disarmed by the King without the approval of Parliament and to restore the rights of those Protestants previously abolished illegally and illegally by the previous King. In the full context it reads:
While the late King James the Second by Assembly of the assembly of different assemblies and ministers spread by him tried hard to overthrow and destroy the Protestant Religion and the Law and Freedom of the Kingdome this (list of complaints included) ... by causing some good subjects to be Protestant to be stripped at the same time when the Papists are Armed and propagated in opposition to the Law, (The recital of the king's change) ... after that the Lord mentioned Spirituall and Temporall and Commons according to their respective Letters and Elections that are now assembled in full and free Representative of this Nation takes into consideration their most serious meaning of best to reach the Ends above Doe in the first place (as their Auncestors in As Case has usually done) to Vindicating and Affirming Their Ancient Rights and Freedoms, Declaring (list of rights included) ... That Protestant Subjects may have Weapons for their Defense in accordance with their Provisions and as permitted by the Law.
The historical relationship between the English Bill of Rights and the Second Amendment, which codified the existing rights and made no new ones, has been recognized by the US Supreme Court.
The English Bill of Rights includes provisions that weapons should be "permitted by law". This has happened before and after the passage of the bill. While it does not rule out previous restrictions on the possession of weapons for hunting, it is subject to the right of parliament to implicitly or explicitly revoke its earlier enforcement.
There are several disagreements over how revolutionary the events of 1688-89 actually are, and some commentators have stated that the provisions of the UK's Human Rights Act do not represent new laws, but rather state the rights that exist. Mark Thompson writes that, in addition to determining succession, the British Bill of Rights did "a little more than set certain points of existing legislation and only make sure to the British the rights they already had [ sic ]. "Before and after the British Bill of Rights, the government could always disarm individuals or classes of individuals deemed harmful to the peace of the empire. In 1765, William Blackstone wrote a Commentary on English Law that depicted the right to possess weapons in England during the eighteenth century as a subordinate addition to the subject "also declared" in the Indonesian Bill of Rights.
The fifth and final right of the subject, which I will discuss today, is that it has a weapon for their defense, according to their conditions and levels, and as permitted by law. Which is also stated by the same law 1 W. & amp; M. st.2. c.2. and is indeed a public benefit, under the applicable limits, of the natural right of resistance and self-preservation, when public and legal sanctions are found insufficient to withstand violence of oppression.
While there is little doubt that the authors of the Second Amendment were strongly influenced by the British Bill of Rights, it was a matter of interpretation of whether they intended to retain power to organize arms to the federal state's top (such as the British Parliament had reserved for itself against the king) or whether it intends to create a new right like the rights of others written into the Constitution (as the Supreme Court decides in Heller ). Some in the United States favor the "right" argument that states that the British Bill of Rights has granted rights. The need to have self-defense is not really questionable. People around the world have long since been arming themselves to protect themselves and others, and when organized nations began to emerge this arrangement has been expanded to protect the country. Without regular military and police forces (which in England were not established until 1829), it was the duty of certain men to watch and guard at night and to confront and arrest suspicious people. Every subject has an obligation to protect the king's peace and assist in the suppression of unrest.
Experience in America before the US Constitution
Early British settlers in America viewed the right to weapons and/or the right to arms and state militia as important for one or more of these purposes (in no particular order):
- allows people to organize the militia system;
- participate in law enforcement;
- guard against tyrannical rule;
- drove back invasion;
- suppressed the rebellion, allegedly including the slave uprising, although some scholars say that this claim is false factually;
- facilitate the natural right of self-defense.
Which of these considerations is regarded as the most important expression and ultimately found in the Second Amendment is disputed. Some of these objectives are explicitly mentioned in the initial state constitution; for example, the Pennsylvania Constitution of 1776 confirms that, "the people have the right to arm themselves in self-defense and the state".
During the pre-revolutionary period of the 1760s, established colonial militia consisted of colonists, including many who were faithful to the British imperial government. When dissent and opposition to British rule flourished, the distrust of these Loyalists in the militia became widespread among the colonists, known as the Patriots, who favored independence from British rule. As a result, some Patriots created their own militia who ruled out the Loyalists and then sought an independent arsenal for their militia. Responding to the development of this weapon, the British Parliament stipulates an arms, spare and ammunition embargo against the American colonies.
The British and Loyalist efforts to disarm the colonial Patriot militia in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, the Blackstone summaries of the Declaration of Rights, their own militia law and common law rights for themselves. -defense. While British policy in the early phases of the Revolution clearly aimed at preventing coordinated action by the Patriot militia, some argue that there is no evidence that Britain seeks to limit traditional common law rights to self-defense. Patrick J. Charles denied these claims by reason of similar disarmament by the patriots and challenged the clerical interpretations of Blackstone.
The occupation's right to weapons and rebellion against oppression was affirmed, for example, in an editorial of pre-revolutionary newspapers in 1769 Boston objected to the suppression of British troops against the colonial opposition to Townshend Acts:
Examples of the immoral and outrageous behavior of the military conservator of peace still multiply over us, some of which are like that, and have been done so long, such as having to fully serve to ensure that late voting from this city, calling on the inhabitants to provide themselves with weapons for their defense, is a measure as wise as it is legal: the offense must always be caught from the military forces, when dignified in the densely populated city body; but more specifically, when they are led to believe that they become necessary to admire the spirit of rebellion, it is dangerously said to be there. This is a natural right that has been provided by the people for themselves, confirmed by the Bill of Rights, to defend the weapons for their own defense; and as Mr. Blackstone, it should be utilized when public and legal sanctions are found not enough to withstand violence of oppression.
The armed forces that won the American Revolution consisted of a standing Continental Army established by the Continental Congress, along with regular French army and navy as well as various state and regional militia units. In controversy, the British troops consisted of a mix of standing British Army, Loyalist militia and Hessian mercenaries. After the Revolution, the United States was ruled by the Confederate Budget. The Federalists argue that this government has an inoperative power division between Congress and the states, which causes military weakness, as the standing army is reduced to at least 80 people. They consider it bad that there is no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion. Anti-federalists on the other hand take the side of limited government and sympathize with the rebels, many of whom are former Revolutionary War soldiers. Subsequently, the Constitutional Convention was proposed in 1787 to grant Congress the exclusive power to promote and support standing armies and navies of an unlimited size. Anti-federalists objected to the shift of power from state to federal government, but as the adoption of the Constitution became increasingly possible, they changed their strategy to enact a right law that would limit federal power.
Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not create the right to guard and carry weapons when he drafted the Second Amendment: those rights are already present in both the common law and in the early state constitution." In contrast, the historian Jack Rakove stated that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that militia would not be disarmed.
One aspect of the arms control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his comment touched upon this right to rebellion as a natural right of resistance and self-preservation, to be used only as a last resort, can be carried out when "public and legal sanctions are found insufficient to withstand violence of oppression". Some believe that the Bill of Rights formulators sought to balance not only political power but also military power, between peoples, states and nations, as explained by Alexander Hamilton in an Essay on Militia Essay published in 1788:
... it is possible to have an excellent body of well-trained militia, ready to take the field whenever the Defense of the State will oblige it. This will not only reduce calls for military companies, but if circumstances must at any time require the Government to form a large army, the army can never be tough for the freedom of the People, while there are many citizens, few, if at all, lower than they are in the discipline and use of weapons, who are ready to defend their own rights, and they are from fellow citizens. It seems to me the only substitute that can be designed for a standing army, and the best security that might be against it, if it should exist.
Some scholars say that it is wrong to read the right of armed rebellion in the Second Amendment because it is clear the founding fathers of the state seek to trust the power of freedom of government from democratic government versus insurrectionist anarchy. Other authors, such as Glenn Reynolds, argue that the formators believed in the individual's right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 the "People's Right to... establish a new government") and the New Hampshire Constitution (which states in 1784 that "not against arbitrary forces, and oppression, is absurd , slavish, and destroy the goodness and happiness of man ").
There is an ongoing debate that began in 1789 about "people" who are fighting the government's tyranny (as described by the Anti-Federalist); or the risks of "people's" masses of masses (as described by the Federalists) linked to the increasingly ferocious French Revolution. Widespread fear, during the debate on ratifying the Constitution, is the possibility of a state military takeover by the federal government, which could happen if Congress passes legislation prohibiting arms arming citizens, or banning armed citizens. Although it has been argued that countries lost power to arm their citizens when the power to arm militia was transferred from state to federal government by Article I, Section 8 of the Constitution, the individual's right to arms was defended and reinforced by the Acts of 1792 Militia and similar actions in 1795.
Country Constitution Precursor under Second Amendment
Drafting and adoption of the Constitution
In March 1785, delegates from Virginia and Maryland gathered at the Mount Vernon Conference to refine the cure for the inefficiencies of the Confederate Article. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five countries (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and compiled a list of problems with current government models. In conclusion, delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present a solution to these problems, such as the absence of:
- arbitration proceedings between countries to deal with disputes between countries;
- well-trained and armed security forces that are intrastate to suppress insurrection;
- national militias to expel foreign invaders.
It quickly became apparent that the solution to these three problems required the transfer of control of the state militia to the federal congress and gave the congress the force to raise a fixed army. Article 1, Section 8 of the Constitution records these changes by allowing Congress to provide the general defense and public welfare of the United States by doing the following:
- collect and support the army, but there is no allocation of money for that use for a longer period of two years;
- providing and maintaining the navy;
- create rules for government and regulation of land and sea forces;
- provide to call militia to execute union laws, suppress insurrection and repel invasions;
- provides for organizing, arming and disciplining militias, and for arranging such parts that can be used to serve the United States, reservations to their respective states, appointing officers and militia training authorities in accordance with the discipline prescribed by Congress.
Some representatives distrust the proposal to enlarge the federal powers, as they worry about the inherent risk of centralizing power. The Federalists, including James Madison, initially argued that rights legislation was not necessary, quite convinced that the federal government would never be able to raise a strong army to tackle the militia. Federalist Noah Webster argues that armed people will have no difficulty fighting a potential threat to the standing freedom of the army. Anti-federalists, on the other hand, advocate for amendments to the Constitution with clearly defined and clearly defined rights and provide more explicit restrictions on the new government. Many Anti-federalists fear the new federal government will choose to disarm the state militia. The Federalists deny that on the list only certain rights, unregistered rights may lose protection. The Federalists are aware that there is not enough support to ratify the Constitution without the right legislation and therefore they promise to support the amendment of the Constitution to add a bill of law after the adoption of the Constitution. This compromise persuades enough Anti-federalists to vote for the Constitution, allowing ratification. The Constitution was ratified on June 21, 1788, when nine of the original thirteen states have ratified it. Four other states followed, though the last two states, North Carolina and Rhode Island, were ratified only after Congress passed the RUU of Rights and sent it to the country for ratification. James Madison compiled what eventually became the Bill of Rights, proposed by the first Congress on June 8, 1789, and adopted on December 15, 1791.
Ratification debate
The debate surrounding the ratification of the Constitution is of practical importance, especially to the strict and strict contractual law of contractual law. In the context of such legal theory and elsewhere, it is important to understand the language of the Constitution in terms of what it means to those who write and ratify the Constitution.
The Second Amendment is relatively uncontroversial at the time of its ratification. Robert Whitehill, a delegate from Pennsylvania, attempted to clarify the draft Constitution with a rights law that explicitly gave individuals the right to hunt on their own land in season, although the Whitehill language was never disputed.
Argument for country strength
There was a substantial opposition to the new Constitution, thereby transferring the power to arm state militias from state to federal government. This creates the fear that the federal government, disregarding the maintenance of the militia, can have the tremendous military power it can possess through its power to maintain a fixed army and navy, leading to confrontation with the states, violating the ' reserved. power and even engage in military takeovers. Article VI of the Confederation Article states:
- No warship shall be kept at peacetime by any State, except in that amount, as shall be deemed necessary by the United States of America in the assembled congress, for the defense of that State, or its trade. ; nor shall any army be guarded by any State in peacetime, unless such amounts alone, as in the judgment of the United States, in assembled congresses, shall be deemed necessary to rally the fortresses necessary to defend the State. ; but each State must always keep the militia well-regulated and disciplined, armed and equipped enough, and must provide and constantly ready for use, in public stores, field pieces and tents, and appropriate weapons, equipment ammunition and camp.
In contrast, Article I, Section 8, Clause 16 of the US Constitution states:
- To provide organizing, assaulting and disciplining, the Militia, and to arrange such Sections as may be used in the United States Services, each ordering to the United States, Appointment of Officials, and Authority training the Militia in accordance with the prescribed discipline by Congress.
Tyrannical Government
American political thought during the period of the Revolution is concerned with political corruption and government tyranny. Even federalists, fending off their opponents who accuse them of creating oppressive regimes, are careful to acknowledge the risks of tyranny. Against that backdrop, framers see the privilege of carrying weapons as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it was "a silly idea to assume that such a state could be enslaved... Is it possible... that the army could be resurrected for the purpose of enslaving themselves or their Brethren? Or, if raised whether they can conquer free people, who knows how to value freedom and who have weapons in their hands? "Noah Webster also argues:
- Before the troops can still rule people must be disarmed; because they exist in almost every kingdom in Europe. The highest power in America can not enforce an unjust law with a sword; because the whole body is armed, and is a higher force than any regular troop group that can, by pretense, be raised in the United States.
George Mason also argued the importance of militias and the right to bear arms by reminding his colleagues of British efforts "to disarm people, that it is the best and most effective way to enslave them... by completely abusing and ignoring the militia." also clarified that under the prevailing practices of the militia include everyone, rich and poor. "Who are the militias? They are now made up of all the people, except some public officials." Because of all the militia members, everyone enjoys the right to each arms to serve there.
Writing after the ratification of the Constitution, but before the first congressional elections, James Monroe included "the right to keep and carry arms" in the basic "human rights" list, which he proposed to add to the Constitution.
Patrick Henry argues in the ratification of Virginia convention on 5 June 1788, for the dual right to arms and the fight against oppression:
- Guard with jealous attention to public freedom. Suspect everyone who approached the gem. Unfortunately, no one can defend it but it is really pushy. Every time you give up that power, you will be devastated.
Preserving the slave patrol
According to Thom Hartmann, the Christians James Madison, Patrick Henry, and George Mason are concerned that "slave patrols", organized whites groups applying the enslaved African-American discipline must remain armed and, therefore, The Constitution is necessary to clarify that the state has the right to organize white people in the militia. Also, Patrick Henry opposes the ratification of the Constitution and the Second Amendment. Most white men in the South age 18-45 are required to serve in such patrols. For example, Georgian law requires slave patrol militia, led by commissioned militia officers, to visit each plantation every month, to inspect the slave dwellings for weapons and to catch and punish slaves found off-site. Patrick Henry formulates his concern that: "If there is a slave rebellion, the state can not be said to be attacked, they can not, therefore, suppress it without the intervention of Congress... Congress, and Congress alone [under the Constitution without the Second Amendment], can call the militia. "
Legal historian Paul Finkelman disputed Hartmann's claim that the Second Amendment was adopted to protect the slave patrol, arguing that Hartmann's claims were "factually wrong and misleading" and that there is no historical evidence for this claim.
Conflict and compromise in Congress produce Bill of Rights
James Madison's initial proposal for a right bill was brought to the parliament floor on June 8, 1789, during the first session of Congress. The proposed starting point with regard to weapons is:
The right of the people to guard and carry weapons should not be violated; well-armed and well-regulated militia is the best security of a free country: but no one who is religiously armed with weapons should be forced to perform personal military service.
On July 21, Madison again raised his bills and suggested a select committee was made to report it. The House voted in favor of Madison's motion, and the Bill of Rights entered the committee for review. The committee returned to the House of Representatives with a revised version of the Second Amendment on 28 July. On August 17th, the version was read in Journal:
A well-regulated militia, made up of the bodies of persons, which is the best free State security, the right of the people to guard and carry arms should not be violated; but no one will be religiously forced to carry weapons.
At the end of August 1789, the Parliament debated and modified the Second Amendment. These debates revolved primarily on the risks of "municipal-administration" by using a "religious" clause to destroy the militia when the United Kingdom attempted to destroy the militia at the start of the American Revolution. This concern was addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:
A well-regulated militia, made up of the body of the people, which is the best security of a free country, the people's right to defend and carry weapons will not be violated; but no one religiously holding a weapon should be forced to perform military service in private.
The next day, August 25, the Senate received an amendment from the House and put it in the Senate Journal. However, the Senate clerk added a comma before "will not be broken" and changed the semicolon separating the phrase from the religious liberation section into a coma:
A well-regulated militia, comprised of the body of the people, the best security of a free country, the right of the people to guard and carry weapons, will not be violated, but no one who is religiously armed should be forced to provide personal military service.
At present, the rights proposed to defend and bear arms are in a separate amendment, rather than being in one amendment along with other proposed rights such as due process law. As explained by the Representative, this amendment allows any amendment to "be clearly forwarded by the United States." On September 4, the Senate elected to amend the Second Amendment language by removing the definition of the militia, and striking a conscientious opposition clause:
The well-regulated militia, being the best security of a free country, the people's right to guard and carry weapons, will not be broken.
The Senate returned to this amendment for the last time on 9 September. A proposal to include the words "for public defense" in addition to the word "bear's arm" was defeated. A motion is passed to replace the words "the best," and enter it as a "necessary for" substitute. The Senate then slightly modified the language to read as the fourth article and chose to return the Bill of Rights to the House. The latest version by the Senate was changed to read as:
A well-regulated militia is required for the security of a free country, the right of the people to guard and carry arms, will not be violated.
The House voted on September 21, 1789 to accept changes made by the Senate.
The original registered Joint Resolutions passed by Congress on September 25, 1789, on permanent display at Rotunda, are read as:
Well-regulated militia, necessary for the security of a free State, the right of the People to guard and carry arms, shall not be violated.
On 15 December 1791, the Bill of Rights (first ten amendments to the Constitution) adopted, ratified by three quarters of the state, was ratified as a group by all fourteen states at that time except Connecticut, Massachusetts and Georgia - which added ratification in 1939; Vermont ratified it all.
Militia in the decades after ratification
During the first two decades after the ratification of the Second Amendment, the public opposition to the standing army, among the Anti-Federalists and Federalists, persisted and manifested itself locally as a general aversion to creating a professional armed police force, instead of relying on county sheriffs, police and carers night to enforce local regulations. Although sometimes compensated, often these positions are not paid - are held as a matter of obligation of citizens. In the early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defense weapon. In a serious emergency, a posse comitatus , a militia company, or a group of security officers takes law enforcement duties; these people are more likely than local sheriffs to be armed with firearms. On May 8, 1792, Congress issued "a more effective measure to provide National Defense, by establishing Uniform Militia across the United States" requiring:
[E] ach and any white, white male free from each State, residing there, aged, or over eighteen, and under the age of forty-five years (except as mentioned here after being excluded) shall be separately and each registered in the militia... [and] every citizen registered and notified, shall, within six months thereafter provide a good shotgun or fireworks, bayonets and an adequate belt, two back-up flints, and a backpack, a pocket with a box inside contains no fewer than twenty-four cartridges, suitable to bear his rifle or firelock, each cartridge containing the right amount of powder and ball: or with a good rifle, rucksack, pouch -shot and powder horns, twenty balls fit the rifle hole, and a quarter pound of powder; and will appear, once armed, acknowledged and provided, when called to exercise, or in service, except that when called on a weekday for exercise alone, he may appear without a backpack.
The law also gave special instructions to domestic arms producers "that since and after five years since the passage of this action, the rifle to arm militias as required here will be quite tedious for the ball from the eighteenth part." In practice, the acquisition and maintenance of personal weapons and specifications of musket meetings and available for militia tasks proved problematic; compliance estimates range from 10 to 65 percent. Compliance with registration conditions is also poor. In addition to legal exclusions for housekeepers and clerks, postal and stage drivers employed in the care and delivery of US mail, miners, export inspectors, pilots, seafarers and those stationed at sea in active service; State legislatures are granted many exceptions under Part 2 of the Act, including exceptions to: priests, conscientious opponents, teachers, students, and juries. And while some well-built white men remain available for service, many do not appear at all for militia duty. The penalties for failure appear to be sporadically and selectively applied. Nothing mentioned in the law.
The first test of the militia system occurred in July 1794, when a group of dissatisfied Pennsylvania farmers rebelled against a federal tax collector whom they regarded as an illegitimate tool of tyrannical powers. Attempts by the four neighboring countries to improve the militias for nationalization to suppress the insurgency proved inadequate. When officials are forced to design men, they face fierce opposition. The upcoming army is primarily composed of conscripts or paid substitutes, as well as the poor who are lured by enlisted bonuses. Officers, however, have higher qualities, respond to a sense of civil obligation and patriotism, and are generally critical of rank and file. Most of the 13,000 soldiers do not have the necessary weapons; the war department provides nearly two-thirds of them with guns. In October, President George Washington and General Harry Lee marched on 7,000 rebels who surrendered without fighting. The episode drew criticism against the citizen militias and inspired calls for universal militias. War Secretary Henry Knox and Vice President John Adams have lobbied Congress to build a federal arsenal to buy imported weapons and boost domestic production. Congress then passed "[a] n acting to establish and improve the Arsenals and Magazines" on 2 April 1794, two months before the uprising. Nevertheless, the militia continued to deteriorate and twenty years later, the poor condition of the militia caused several losses in the 1812 War, including the dismissal of Washington, D.C., and the arson of the White House in 1814.
Academic comments
Initial comment
Richard Henry Lee
In May 1788, Richard Henry Lee wrote in a Supplementary Letter from Federal Farmer # 169 or Sura XVIII on the definition of "militia":
The militias, when properly formed, are actually the people themselves, and making regular troops in large numbers is not necessary.
George Mason
In June 1788, George Mason spoke of the Virginia Endorsement Convention on "militia:"
A worthy member has asked who the militia, if they are not the people, of this country, and if we are not protected from the fate of the Germans, Prussians & amp; c. by our representative? I ask who is the militia? They now consist of all the people, except for some public officials. But I can not say who will be a militia in the future. If the paper on the table does not change, the militias in the future may not consist of all classes, high and low, and rich and poor; but may be limited to the lower and middle classes of the people, providing an exception to the higher classes of society. If we had to see that day, the most embarrassing punishment and heavy fines could be expected. Under the present administration all ranks of people are subject to militia duty.
Tench Coxe
In 1792, Tench Coxe made the following points in comments on the Second Amendment:
As civil rulers, do not have their duty to the right people in front of them, may try to do wrong, and as military forces that sometimes have to be raised to defend our country, may distort their strength against the injury of their fellow citizens, confirmed by the next article on their right to keep and bear their personal arm.
Tucker/Blackstone
The earliest commentary published on the Second Amendment by a major constitutional theorist is by St. George Tucker. He annotated the five-volume edition of Sir William Blackstone's Commentary on English Law, a critical legal reference for an early American lawyer published in 1803. Tucker writes:
Well-regulated militants are required for the security of a free country, the right of the people to guard and carry arms, will not be violated. Amendment to C. U. S. Art. 4. It can be considered a palladium of true freedom... The right to self-defense is the first law of nature: in most governments the rulers have learned to limit this right within the narrowest limits. Wherever soldiers stand guarded, and the people's right to guard and carry arms is, under any color or pretext, prohibited, freedom, if not yet destroyed, on the verge of collapse. In Britain, people have been stripped, generally, on the pretext of plowing to preserve the game: a temptation that never fails to bring in a landed aristocracy to support any action, under the mask, even if counted for very different purposes. True, their rights bill seems at first sight to oppose this policy: but the right of holding weapons is limited to the demonstrators, and words according to their conditions and degrees, have been interpreted to endorse the prohibition of storing weapons or other machines for destruction game, for any farmer, or small trader, or anyone else who is not eligible to kill the game. So no one in five hundred can keep a weapon in his house without being punished.
In footnote 40 and 41 of Commentary, Tucker stated that the right to bear arms under the Second Amendment is not subject to restrictions that are part of British law: "The right of the people to keep and the arms of bears will not be violated Amendment against CUS Art 4, and this is unqualified for their conditions or titles, as in the British government "and" anyone who checks forests, and game law in the British code, will soon understand that the right to hold weapons is effectively taken from the British people. "Blackstone himself also commented on the law of the English game, Vol. II, p.Ã, 412, "that the prevention of popular uprisings and opposition to the government by paralyzing large numbers of the people is a more significant reason than that of forest and game lawmakers." Blackstone discussed the right of self-defense in a separate part of his treatise on the general law of crime. Tucker's explanation for the last part does not mention the Second Amendment but cites the standard work of English lawyers such as Hawkins.
Furthermore, Tucker criticized the UK Human Rights Bill for restricting the possession of arms to very wealthy people, leaving the people effectively disarmed, and expressed the hope that Americans "never cease to assume the right to hold and hold weapons as the surest promise of their freedom. "
William Rawle
Tucker's comment was soon followed, in 1825, by William Rawle in his monumental texts, US Constitutional View . Like Tucker, Rawle condemns the English "arbitrary code for the preservation of the game", which describes the country as one of the "boasting of so many freedoms," yet entitles "only protestant subjects" who "carefully describe [es] to be who carries a weapon for their defense "and reserves for" [a] small portion of the people [.] "Instead, Rawle characterizes the second clause of the Second Amendment, which he calls a reasonable clause, as a general ban against the abuse of altered governmental power altered, expressly stated:
There are no clauses that any construction rule can make to give the congress the power to disarm people. A very important effort can only be done under general pretense by the state legislature. But if in any pursuit of excessive power, should try it, this amendment can be put forward as a curb on both.
Speaking of the Second Amendment in general, Rawle said:
The ban is general. There is no clause in the Constitution that can with any understandable construction rules to give to the congress the power to disarm people's arms. A very important effort can only be done under general pretense by the state legislature. But if in any pursuit of excessive power, should try it, this amendment can be put forward as a curb on both.
Rawle, long before the conception of the merger was officially recognized by the court, or Congress drafted the Fourteenth Amendment, argued that citizens may appeal to the Second Amendment should either state or attempt the federal government to disarm them. He does warn, however, that "this right [to bear arms] should not be... abused for public peace disorder" and, quoting Coke, observes: "A collection of people with weapons, for unlawful purposes, is a violation that can allegedly, and even carrying weapons abroad by an individual, faced with circumstances merely giving reason to fear that his intention to use them unlawfully, would be sufficient reason to ask him to provide a guarantee of peace. "
Joseph Story
Joseph Story articulates in his influential book Commentary on the Constitution the orthodox view of the Second Amendment, which he considers to be a clear meaning of the amendment:
The right of citizens to guard and carry arms has been deemed fair, as a palladium of the freedom of a republic; because it offers a strong moral examination of the power struggle and the arbitrary power of the ruler; and in general, even if this succeeds in the first instance, allowing people to reject and win over them. Yet even though this truth will seem so clear, and the importance of a well-regulated militia will seem so undeniable, it can not be disguised, that among the American people there is an increasing indifference to any system of militia discipline, and a strong one. disposition, from his sense of burden, to get rid of all the rules. How it is practical to keep people armed without some organization is hard to see. Of course there is no small danger, that indifference can cause disgust, and disgust to be underestimated; and thereby gradually undermining all the protection referred to by this National Bill of Rights clause.
The story describes the militia as a "natural defense of a free country," both against foreign enemies, domestic uprisings and power struggles by the authorities. This book considers the militia as a "moral examination" of arbitrary deprivation of power and the use of power, while expressing difficulties in the increasing indifference towards the American people to maintain such an organized militia, which could lead to disruption of the protection of the second Amendment.
Lysander Spooner
Abolitionist Lysander Spooner, commenting on the bill of rights, stated that the object of all bills of rights is to assert individual rights against the government and that the Second Amendment of the right to safeguard and bear arms is to support the right to resist government oppression, since the only security against tyranny the government lies in the forced resistance to injustice, because injustice will inevitably be executed, unless forcibly opposed. Spooner's theory provides an intellectual foundation for John Brown and other radical abolitionists who believe that arming slaves is not only morally justified but entirely consistent with the Second Amendment. A clear link between this right and the Second Amendment was taken by Lysander Spooner who commented that the "right of resistance" is protected by the right to be judged by the jury and the Second Amendment.
The congressional debates on the proposed Fourteen Changes are concentrated on what the Southern States do to injure the newly freed slaves, including disarming ex-slaves.
Timothy Farrar
In 1867, Judge Timothy Farrar published his book United States Constitution Manual , written when the Fourteenth Amendment was "in the process of adoption by the State legislature.":
Countries are recognized as governments, and, when their constitution allows, can do as they please; provided they do not interfere with the Constitution and the laws of the United States, or with the civil or natural rights of such persons, and are held in accordance with them. The right of every person to "life, liberty, and property," to "guard and carry arms," ​​to "habeas corpus warrant" for "court by jury," and other divers, recognized by, and held under, the Constitution of the United States , and can not be violated by individuals or even by the government itself.
Judge Thomas Cooley
Judge Thomas M. Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively on this amendment, and he explained in 1880 how the Second Amendment protects the "people's right" ,:
It may stem from the phraseology of this provision that the right to keep and carry arms is only guaranteed for the militia; but this will be an interpretation that is not guaranteed by its intent. The militia, as described elsewhere, consists of persons who, under the law, are responsible for the performance of military duties, and are assigned and registered for service when called. But the law may make provisions for the registration of all persons eligible to perform military duties, or only a small amount, or may at all disregard making the provision altogether; and if the right is limited to those listed, the purpose of this guarantee may be defeated altogether by an action or negligent act of government intended to withhold a check. The meaning of the provision is undoubtedly, that the people, from whom the militia should be taken, are entitled to defend and bear arms; and they do not require a permit or rule of law for that purpose. But this allowed the government to have a well-regulated militia; to carry a weapon implies something more than keeping it; this implies learning to deal with and use it in a way that makes those who make them ready for their efficient use; in other words, this implies the right to meet for voluntary discipline in the arm, observing in the conduct of public order law.
End of the 20th century comment
In the second half of the 20th century, there was a great debate as to whether the Second Amendment protects individual rights or collective rights. The debate centers on whether the preliminary clause ("A well-regulated militia needed for the security of a free State") states the purpose of the amendment alone or simply announces the purpose of introducing an operating clause ("The people's right to keep and bear arms will not be broken"). Scholars advance three competing theoretical models for how the prefitur clause should be interpreted.
The first, known as "state rights" or "collective rights", states that the Second Amendment does not apply to individuals; rather, recognizing the right of every state to arm its militias. With this approach, citizens "have no right to defend or carry weapons, but countries have the collective right to have a National Guard". Supporters of the collective rights model argue that the Second Amendment was written to prevent the federal government from disarming the state militia, rather than to guarantee the right of individuals to own firearms. Prior to 2001, any circuit court decision interpreting the Second Amendment supported the "collective rights" model. However, beginning with the opinion of Fifth Circuit United States v. Emerson in 2001, some circuit courts acknowledged that the Second Amendment protects the rights of individuals to bear arms.
The second, known as the "sophisticated collective rights model", states that the Second Amendment recognizes limited individual rights. However, this individual right can only be done by actively participating in organized and functioning state militia members. Some scholars argue that "sophisticated collective rights model" is, in fact, the functional equivalent of the "collective rights model." Other commentators have observed that before Emerson , five circuit courts specifically supported "sophisticated collective rights models".
The third, known as the "standard model", states that the Second Amendment recognizes the individual's individual right to safeguard and carry weapons. The proponents of this model argue that "although the first clause may explain the general purpose for amendment, the second clause is controlling and therefore the change conferred the individual 'people' right to guard and carry weapons." In addition, the intellectuals who favor this model argue that "the absence of the establishment militia mentioned in Amendment amendments does not make it a 'death letter' because preamble is a 'philosophical endorsement' that protects the militia and is only one of several 'civilian destinations' for which the Amendment enforced ".
Under both models of collective rights, the opening phrase is considered important as a pre-condition for the main clause. This interpretation states that this was a common grammatical structure during that era and that this grammar dictates that the Second Amendment protects the collective right of firearms to the extent necessary for militia duty. However, under the standard model, the opening phrase is believed to be prefatory or reinforced to the operating clause. The opening phrase is intended as a non-exclusive example - one of the many reasons for the amendment. This interpretation is consistent with the position that the Second Amendment protects the rights of the modified individual.
The question of collective rights versus individual rights is progressively resolved in favor of individual rights models, beginning with the Fifth Circuit decision in the United States of America v. Emerson (2001), together with a Supreme Court ruling in the District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). In Heller , the Supreme Court ruled every remaining circuit divided by deciding that the Second Amendment protects the rights of the individual. Although the Second Amendment was the only amendment to the Constitution with a preliminary clause, such linguistic constructions were widely used elsewhere in the late 18th century.
Warren E. Burger, a conservative Republican appointed US Supreme Court by President Richard Nixon, wrote in 1990 after his retirement:
"The United States Constitution, in the Second Amendment, guarantees 'the people's right to defend and carry arms.' However, the meaning of this clause can not be understood except by looking at the goals, arrangements and objectives of the image maker... People on that day were worried about the new national government "monster" presented to them, and this helped explain the language and purpose The Second Amendment... We see that the need for state militias is a 'true' guarantee predicate, in short, it is declared 'necessary' to have the country's military power to protect the security of the state. "
And in 1991 Burger stated:
"If I write the Bill of Rights now, there will be no so-called Second Amendment... that a well-regulated militia is needed to defend the country, the rights of the people to bear arms." It has been the subject of one of the biggest pieces of deception - I repeat the word 'fraud' - to the American public by the special interest groups I've seen in my life. "
In a 1992 opinion article, six former US attorney general wrote:
"For more than 200 years, federal courts have unanimously ruled that the Second Amendment only concerns arming the people
Source of the article : Wikipedia
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