The Second Amendment: The Real Issue

We have to read all the words in the Second Amendment, not just the ones we like.
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Too many participants in the debate over what the Second Amendment means have framed the issue incorrectly.

The question should not be whether the amendment protects an "individual" or "collective" right to own guns. That is a red herring, one that leads partisans on either side to look at only half of the Amendment -- either the "Militia purpose" clause, or the "keep and bear Arms" clause.

As I argued earlier, we have to read all the words in the Second Amendment, not just the ones we like.

Instead, the real issue in this debate is what purpose the amendment was written to protect, and how, therefore, the Second Amendment should be interpreted and applied. Fortunately, the Supreme Court clearly spoke to that question in the 1939 Miller decision:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the "well regulated Militia,"] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

So, according to the U.S. Supreme Court, the Second Amendment has a militia purpose. Not a hunting purpose. Not a self-defense purpose. Not a target-shooting purpose. Not a "private purpose." Just a militia purpose.

Unfortunately, however, the lower-court opinion in the D.C. gun case ignored this nearly 70-year-old precedent and invented a rationale to invest the Second Amendment with a non-existent "private purpose."

This is the central reason why that decision was clearly erroneous and should be reversed.

Today I post the fourth installment of the Brady Center Legal Action Project's thorough criticism of the appeals court decision in the D.C. gun case, now before the U.S. Supreme Court. It is titled, "Parker and 'the People': How the Parker Court Obscured the Real Issue in the Second Amendment Debate", and it explains what the real issue is today before the United States Supreme Court.

I include an excerpt here, with a link to the full text at the end:

This installment addresses the Parker court's "lead-off" argument: that the use of the term "the people" in the Second Amendment itself establishes that the right guaranteed by the Amendment extends to private purposes such as hunting and self-defense and is not confined to service in a "well regulated Militia."

The Parker majority wrote that "[I]n determining whether the Second Amendment's guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right - 'the people'." Noting that the term "the people" is found in the First, Second, Fourth, Ninth, and Tenth Amendments, the court asserted that it "has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation." The majority concluded: "The natural reading of the 'right of the people' in the Second Amendment would accord with usage elsewhere in the Bill of Rights." "The people," according to the Parker court, cannot mean "some subset of individuals such as 'the organized militia,'" and also cannot mean "the states." Thus, the Parker court concludes, "the right in question is individual.

The court, however, simply obscured the real issue. There is no question that the Second Amendment guarantees a right to "the people" -- that much is clear from the text. The issue is: What right does the Second Amendment grant to the people? Is it the right to possess and use guns for private purposes like hunting or self-defense, as asserted by the Parker majority, or rather the right to be armed for purposes related only to service in a government-organized militia?

Read the full installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on and the Huffington Post.)

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