No Guarantee of a Gun: How and Why the Second Amendment Means Exactly What It Says

By John Massaro

The information in this book proves by means of credible and irrefutable documentary evidence that the Supreme Court's decision on June 26, 2008, in District of Columbia v. Heller, which held that the Second Amendment protects the right of an individual to possess and carry weapons, was incorrect. And the information in this book forms the foundation of what would have been the correct decision in that case.

Second Amendment commentary and case law are incorrect. But unfortunately, they are relied upon by today's scholars and jurists. However, this book, written in plain English instead of the legalese that many persons find unappealing about books pertaining to legal subjects, takes the bold step of disproving these incorrect authorities on the most controversial and puzzling provision of the United States Constitution, and it meets that challenge.

While other books on the Second Amendment rely largely on incorrect commentary and case law, this book uses credible and irrefutable documentary evidence to uncover the substance of the Second Amendment. By proving that Second Amendment commentary and case law are incorrect, this book will become both the preeminent treatise on the Second Amendment and a landmark book in the field of Constitutional law. And while gun control has been a highly controversial issue for a long time, the debate on gun control has been improperly bifurcated into what is good public policy and what is Constitutional. This book eliminates the Constitutional component of that debate so that the debate can be focused solely on what is good public policy.

Other books written on the Second Amendment propose incorrect theories or attempt to reconcile its two supposed clauses. However, this book is the best book ever written on the Second Amendment because it does what no other book has ever done. It uncovers, by means of documentary evidence instead of mere argument, the true meanings of the terms A well regulated Militia, people, keep, and bear arms.

• Language: English
• Publisher: AuthorHouse
• Release date: Dec 3, 2009
• ISBN: 9781468529388

John Massaro

John Massaro has a bachelor of science degree in physical education and a juris doctorate from Hofstra University in Hempstead, New York, and a master of arts degree in liberal studies with an accent in health from the State University of New York at Stony Brook. His two main interests are football and public issues. John is also the writer and the editor of SoapboxWeekly.com, which provides perspective on public issues and sports. His other books include The Total Home Workout and SUPER FACTS OF THE SUPER BOWL. His experience as a football coach includes four years as an assistant coach at the State University of New York at Stony Brook and tenures at Hauppauge High School, Harborfields High School, Newfield High School, Centereach High School, and Kings Park High School on Long Island. In addition, John is a New York State-certified physical education and health teacher. He taught physical education and health at Newfield High School and also worked for his family's manufacturing business.

Book preview

Contents

ACKNOWLEDGMENTS

AUTHOR’S NOTES

PART I

CHAPTER 1. THE STARTING POINT OF OUR DISCUSSION

PART II

CHAPTER 2. WHAT THE MILITIA IS

CHAPTER 3. HOW THE NATIONAL GUARD IS THE ORGANIZED STATE MILITIA

CHAPTER 4. HOW A WELL REGULATED MILITIA REFERS TO THE NATIONAL GUARD

CHAPTER 5. WHY A WELL REGULATED MILITIA IS NECESSARY TO THE SECURITY OF A FREE STATE

CHAPTER 6. WHAT A CONSTITUTIONAL RIGHT TO POSSESS AND CARRY WEAPONS THAT SHALL NOT BE INFRINGED WOULD MEAN (Section 1)

CHAPTER 7. WHAT A CONSTITUTIONAL RIGHT TO POSSESS AND CARRY WEAPONS THAT SHALL NOT BE INFRINGED WOULD MEAN (Section 2)

CHAPTER 8. WHO THE PEOPLE ARE

CHAPTER 9. WHAT IT MEANS TO KEEP ARMS

CHAPTER 10. WHAT IT MEANS TO BEAR ARMS

PART III

CHAPTER 11. BUT WHAT ABOUT UNITED STATES V. MILLER ?

CHAPTER 12. BUT WHAT ABOUT STATE PROVISIONS, INCORPORATION, AND THE TRANSFORMATION OF THE SECOND AMENDMENT?

CHAPTER 13. BUT ISN’T THE BILL OF RIGHTS FOR INDIVIDUAL RIGHTS?

PART IV

CHAPTER 14. HOW THE SECOND AMENDMENT RIGHT CAN BE INFRINGED AND WHO CAN ASSERT A SECOND AMENDMENT CLAIM

REFERENCES

ACKNOWLEDGMENTS 

There are a number of people I would like to thank for the various forms of assistance and support they gave me in creating this book.

I would like to thank my mother, Carmela Massaro; my sisters, Mary Wagner, Theresa Swiatek, Cathy Massaro, and Pam Massaro; my nephews, Guy Schoettl, Justin Schoettl, Michael Schmitt, and Tim Schmitt; my niece, Melodie Schmitt; my niece, Anne Schmitt; my great-niece, Moira Schmitt; my great-nephews, Francesco Schmitt and Karl Schmitt; and my brother-in-law, Dave Swiatek. Many thanks go to my best friend, Gil DeCicco, and his wife, Veronica; my friend and roommate, Paul Mastronardi, and his wife, Liz; my friend, Andrew Mastronardi, and his wife, Lori; and my friend, Dave Caldiero.

Again, I thank all of these people very much.

AUTHOR’S NOTES 

1. The information in this book proves by means of credible and irrefutable documentary evidence that the decision that was rendered in the case of District of Columbia v. Heller, which was decided in the United States Supreme Court on June 26, 2008, and held that the Second Amendment protects the right of an individual to possess and carry weapons, was incorrect. And the information in this book forms the foundation of what would have been the correct decision in that case.

2. Any idea presented in this book that is not attributed to any particular source is original to the author. Any similarity or resemblance between any original idea of the author and that of any other person or source is purely coincidental.

3. In this book, quoted passages are, if they are incorrect in terms of grammar, spelling, or punctuation, what was copied from the sources. Any changes made to any quoted material are noted by the use of bold type. Any bold type is added unless otherwise noted.

4. Commentators are identified initially by first and last names and then usually subsequently by only last names.

5. A court case may be decided on different judicial levels over a number of years and even under different names.

6. The year of a statute citation is the year of the volume from which it was cited.

7. Opposing views are included virtually exclusively for the purpose of showing how they are different from those of the author. The inclusion of such views is the only way in which they can be fairly represented in order to be properly refuted. Cases of agreement with other commentators are noted in the text.

8. Citations of materials are noted by bold references.

Key

[f] footnote

[fs] footnotes

[e] endnote

[es] endnotes

[c] citation

[cs] citations

p. page

pp. pages

[sic] error

For example, [622: f. 56 on p. 3-765] means footnote 56 on page 765 of volume 3 of source 622.

PART I 

INTRODUCTION

CHAPTER 1. THE STARTING POINT OF OUR DISCUSSION  

The Second Amendment to the United States Constitution is unique in American law in that virtually all of the case law and virtually all of the commentary on the subject are wrong. The objective of this book is to prove that the Second Amendment guarantees the 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. This is a bold objective, because the premise of this book runs counter to virtually all of the case law and virtually all of the commentary on the subject.

What makes this book different from all others that have been written about the Second Amendment is that it does not adhere to false theories and it does not attempt the futile task of trying to reconcile the two clauses of the Second Amendment. Instead, this book relies on facts and documentary evidence to prove what the Second Amendment really means.

In order to prove what the Second Amendment really means, this book will prove four premises about the Second Amendment that until now have been only suggested in part but have never actually been proven. This book will prove 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; that people refers to the general populace and not to individuals; that keep refers to the storage of weapons by the general populace and not to the private possession of weapons; and that bear Arms means render military service and not carry weapons.

It should be understood that despite all of the evidence and facts upon which this book is based, there will still be some persons who hold a view of the Second Amendment that is diametrically opposed to the one proven by this book. The objective of this book is not to convince those persons with a bunker mentality that there is no individual right that is guaranteed by the Second Amendment to possess and carry weapons or there is no state right guaranteed by the Second Amendment to maintain a Militia. Instead, the aim of this book is to reach those persons who are not sure about the Second Amendment and those persons who might have a contrary position but are willing to listen to evidence and arguments that are not only reasonable but are also irrefutable because they are backed up by facts and the documentary record.

SCOPE OF THE BOOK

The only thing that this book is about is the Second Amendment. This book is not a discussion about gun control or public policy. It is simply an explanation of what the Second Amendment says and means.

In addition, this book is not about whether or not there is a right of an individual in the Constitution outside the Second Amendment (and, as we will later see, outside the Second Amendment as incorporated through the Fourteenth Amendment) to possess and carry weapons. For example, the Ninth Amendment states

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [465: p. 26]

And the Tenth Amendment states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [465: p. 26]

Arguments about whether or not the Ninth Amendment, the Tenth Amendment, or any other part of the Constitution outside the Second Amendment guarantees an individual right to possess and carry weapons are a subject for another book.

However, although this book is not about gun control, it does have important implications for the debate on gun control, which has long been dichotomized into policy and law. One part of the debate has focused on what, if any, gun-control laws would be good policy. But the other part of the debate has focused on the extent to which guns can be regulated without violating a supposed individual Second Amendment right to possess and carry weapons. However, by proving that the Second Amendment does not guarantee any individual right to possess and carry weapons, this book can move the debate on gun control out of its erroneous context of Constitutional law and leave it solely in its correct place within the realm of public policy. Thus, we can focus the debate on exclusively 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.

HOW TO INTERPRET THE SECOND AMENDMENT

As written in Statutes at Large, which is the compilation of the laws as passed by Congress and signed into law by the President or implemented by means of the overriding of vetoes by the President and which also includes the Constitution, the Second Amendment states

ART. II. 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. [739: p. 1-21]

As written in the United States Code, which is the compilation of current United States statutes and which also includes the Constitution, the Second Amendment states

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. [738]

As we will see, the Framers of the Constitution were less than strict with regard to their punctuation and capitalization of the English language. However, as we will see also, the various ways in which the Second Amendment may be punctuated or capitalized do not change its meaning. But by what means should we interpret the Second Amendment?

There have been different opinions about the means by which the Second Amendment should be interpreted. The common law is law that originates from tradition and custom and not from legislation passed by a governing body. In Ex parte Grossman (1925), the Supreme Court stated

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood. [228: pp. 108-09]

A few commentators have endorsed an interpretation of the Second Amendment in accordance with the common law. Stuart R. Hays (1960) said

It then stands to reason that the right to bear arms rests on three solid English rights: the right of revolution; the right of group self-preservation; and, the right of self-defense. Without these rights there would be no reason for the bearing of arms. If there were no reason for bearing arms, then there would be no valid legal basis for the right to bear arms. These basic rights are a portion of the English common law and had evolved prior to the landing at Jamestown in 1607. Further, these basic rights applied to all Englishmen and not merely to those living in England and personal to England. They are the basis for the interpretation of the Constitution of the United States. [f] [263: p. 388]

And he said

The Code of the Commonwealth of Virginia, as do many other state codes, provides that the common law of England is in full force and effect as it existed at the time of the reign of (fourth year) of James I (1607) and is not repealed by statute. [f] [263: p. 388]

This is incorrect. What Article I, § 1-200 (The common law) of the Code of Virginia (2008) actually states is

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. [114]

Anyway, the common law seems to be a rather strange way of interpreting the United States Constitution. After all, why would the Founding Fathers, who were the drafters and the ratifiers of the Constitution, have created the Constitution if they were simply going to follow the common law? Why would they have gone through the process of drafting and ratifying the Constitution if it were simply a regurgitation of the common law? Had they intended to interpret the Constitution by means of the common law, they probably would have followed the course of Great Britain, which has a common-law constitution and not a written one. And, as we will see, the Constitution explicitly states the instances in which the common law is authoritative.

Other commentators believe in a revisionist interpretation of the Constitution (presumably including the Second Amendment). They feel that the Constitution should be interpreted in accordance with whatever is suitable at a particular time. Supreme Court Justice William J. Brennan (1986) said

Current Justices read the Constitution in the only way that we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time. [81: p. 438]

Brennan (1986) said also

Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations. [81: p. 444]

It is true that Constitutional principles may be applied in accordance with the times. For example, although the Founders did not have telephones or the Internet in mind when incorporating the right of freedom of speech into the First Amendment, freedom of speech should apply to telephones and the Internet, as those media are modern vehicles for speech. However, the underlying foundational principles of the Constitution still mean what they meant in 1789, even though the precise applications of those principles might have changed.

Katherine Hunt Federle (2004) argued that history and text are not important, saying

Much of what has been written about the right to keep and bear arms on both sides of the argument places too much emphasis on history, the intent of the Framers, and textual analysis, while trying to divine the Supreme Court’s thinking on an issue it has never directly addressed. Nevertheless, one reasonably can conclude that the Second Amendment does protect an individual right to keep and bear arms without relying on a strained textual, historical, or jurisprudential analysis. [f] Thus, from a nonoriginalist perspective, we are not constrained by what the Framers thought the Constitution meant; rather we can interpret the Constitution in ways that comport with our increasingly civilized society and our respect for individual freedom, privacy, and diversity of viewpoint. [f] Within this interpretive approach, the claim that the Second Amendment protects an individual right to keep and bear arms is reflective of a deep tradition of private gun ownership in the United States that merits constitutional consideration and protection. [f] That the right to keep and bear arms provokes considerable controversy, while undeniable, only underscores the importance of protecting the right from undue infringement. [188: p. 614]

This view seems to minimize the importance of research and analysis of facts and history. But facts and history are indeed important, and the purpose of research is to find out just what those facts and that history are. We cannot simply make the Constitution mean what we want it to mean in order to fit some kind of intended model or agendum. One could use Federle’s argument to justify a particular point of view on any controversial issue. For example, either side of the abortion debate could claim victory simply by saying that the controversy shows the importance of a woman’s right to choose or a child’s right to be born. Federle (2004) said also

Despite the various claims of individual and collective right theorists and scholars, we do not know what the Second Amendment means. The text of the Second Amendment itself is remarkably unenlightening, while textual interpretation ultimately proves unpersuasive because of the absence of any definitive historical understanding of the meaning of the Second Amendment or the intent of the Framers. While there is considerable debate about what the Supreme Court has said on the subject, no definitive Supreme Court case exists concerning the meaning and scope of the Second Amendment.

However, a nonoriginalist interpretive framework suggests that the Second Amendment guarantees an individual right, not because the Framers thought so or the text says so, but because our evolving Constitution can recognize the long tradition of lawful gun ownership in this country. It is that nonoriginalist commitment to tolerance and liberty which may not only provide the Second Amendment with content but illustrates that nonoriginalism may serve interests across the political spectrum. [188: p. 609]

Again, if we do not know the meaning of a provision of the Constitution, it is incumbent upon us to do the proper research in order to resolve the uncertainties. And again, it does not suffice to give a particular meaning to a Constitutional provision simply to serve interests or to fulfill a political or social agendum.

F. Smith Fussner (1986) said

What the Constitution means is not only what the founders thought and wrote (history records the fact that slavery was once constitutional), but also what we today, after our best efforts to understand the aspirations embodied in the document, make of it. The Constitution and its history constitute common ground, disputed but still shared by those who would limit and by those who would extend the right to keep and bear arms. [200: p. 588]

This statement fails to distinguish revisionist interpretation of the Constitution from the actual amending of the Constitution. The allusion to slavery is not valid, because slavery is no longer Constitutional due to the passage of the Thirteenth Amendment, which explicitly abolished it. By contrast, the Second Amendment is still a part of the Constitution. Therefore, the substance of the Second Amendment is still what it was when it was ratified in 1791. A provision of the Constitution is what it is until and unless it is ratified by a process outlined in Article V of the Constitution. Later on, we will be discussing a revisionist interpretation that applies to the Second Amendment specifically.

William Safire (1999), referring to the Second Amendment, said

I say, let the people decide a political issue. Either we’re serious about our right to gun ownership or we’re serious about our need for gun control. [516: p. A31]

But as we will see, the Second Amendment and its meaning are a legal issue and not a political one. The Second Amendment is about law and is not about public policy. Safire said also

Here’s how to fix a flawed amendment that is the source of so much confusion: Repeal its ambiguous preamble. Let some member of Congress introduce an amendment to strike the words before the comma in the Second Amendment. [516: p. A31]

We will see that the preamble is not so ambiguous if proper research is done to reveal what it means. He continued

Then vote the amendment up or down. If it fails to pass, stop arguing and compromise on nibbling. If Congress passes repeal, let ratification be fought out in the states, where representatives closest to the people can decide on strict licensing. [516: p. A31]

And Safire said also

That’s the decisive, constitutional way to come to grips with the abomination of too many handguns in trigger-happy hands. [516: p. A31]

But as we will see also, the Second Amendment is about neither gun ownership nor gun control.

Should public opinion matter? Robert A. O’Hare, Jr., and Jorge Pedreira (1992) said

In 1975, a national poll revealed that 70% of the general public believed that the Second Amendment guarantees an individual’s right to bear arms, while an additional 3% thought it gave both an individual right to bear arms and a state right to establish an official armed militia. [cs] Curiously enough, polls also indicate wide public support for some form of gun control. [c] [422: f. 39 on p. 189]

And Brannon P. Denning (1996) said

According to a poll taken in the spring of 1995, seventy-five percent of Americans believe citizens possess a constitutional right to keep and bear arms. [f] [144: p. 1001]

He said also

In that poll, the question presented was whether one agreed or disagreed with the following statement: Do you agree that the Constitution guarantees you the right to own a gun? In response, 75% of those polled agreed; only 18% disagreed. [c] [144: f. 223 on p. 1001]

Roger I. Roots (2000) came right out and said that courts should heed public opinion in their interpretations of the Second Amendment. He said

That the plain text of the Second Amendment is for the most part unambiguous can be divined from the fact that public opinion polls establish an overwhelming view among the public that the Amendment secures an individual right. [cs] Thus, the analysis of any court should stop there. [509: f. 16 on pp. 74-75]

But has the public done its research? Some people might not even be able to recite the Second Amendment. Should we interpret the rest of the Constitution like this? In the United States, we do not have adjudication by public fiat. It might be argued that legislators should legislate in accordance with the will of the people. However, judges cannot worry about the will of the people but must instead focus on interpreting and applying the law correctly.

In Gibbons v. Ogden (1824), the Supreme Court stated

As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. [211: p. 188]

And in Ex parte Bain (1887), the Supreme Court stated

It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. [30: p. 12]

David B. Kopel (1998) deciphered the Second Amendment according to dictionary definitions. He said

How would the Second Amendment read if rephrased according to Webster’s dictionary?

The good order of able-bodied men required to attend military exercises on certain days being indispensibly requisite to the protection of a not-enslaved body politic, the just claim of the body of persons who compose the United States to retain and wear weapons and armor shall not be violated. [316: p. 1408]

But there is a better and correct way to deal with the controversy surrounding the Second Amendment, and that way is to do the proper research that will reveal what the Second Amendment really means.

In District of Columbia v. Heller (2008), a challenge to a gun-control law, the Supreme Court, after completing an analysis of the text of the Second Amendment, stated

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. [437: p. 19]

This book is the result of proper and thorough research on the Second Amendment. This book will prove that the conclusion about the Second Amendment arrived at by the Supreme Court in District of Columbia v. Heller is incorrect. After reading this book, even the person with no background in law will know more about the Second Amendment than most attorneys, most law professors, most historians, and even most judges.

THE DEBATE ON THE SECOND AMENDMENT

Why has the meaning of the Second Amendment been so controversial? The debate on the Second Amendment has been the result of a few factors. One is ideology. Some people are so staunchly in favor of guns and others are so staunchly opposed to guns that much of the debate is based more on emotion and rhetoric than on facts. Supreme Court Justice Antonin Scalia (1997) said

Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. [520: f. 13 on p. 137]

And in the concurring opinion in Printz v. United States (1997), a case involving a challenge to the Brady Act, Supreme Court Justice Clarence Thomas stated

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the right to keep and bear arms is, as the Amendment’s text suggests, a personal right. [cs] Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. [cs] [474: f. 2 on pp. 938-39]

However, much of the debate on the Second Amendment is based upon poor research. Some statements that are made are simply false. For example, Ronald S. Resnick (1999) said

A reader of the Federalist Papers [f] likely would conclude that no proposed amendment is afforded less attention in the Federalist Papers than the Second Amendment. There was no dispute among the Framers or the opponents of federalism about the meaning of the Second Amendment or about the persons or instruments to which it applies. Federalists and anti-federalists alike were in agreement on the meaning of the Second Amendment and the importance of an armed citizenry. [f] [490: pp. 13-14]

To many persons, this statement might sound rather benign. However, The Federalist Papers were written in 1787 and 1788, and James Madison did not unveil his original proposal for the Second Amendment or any other amendment until June 1789. And Roots (2000) said

The final result of the ratification conventions was an utter failure for those who had sought to remove the national standing army provisions from the text of the Constitution. [f] The document we now know as the Constitution was formally ratified by a recalcitrant Rhode Island on May 29, 1790. After this final ratification, the work of drafting a bill of rights began in earnest. [509: p. 100]

Actually, by the end of September 1789, the original amendments to the Constitution, which are now commonly known as the Bill of Rights, had already been proposed, debated, drafted, and presented to the states for ratification.

William G. Dennis (1995) said

It is difficult, at best, to make a credible case that there is no individual right to keep and bear arms. Fifty-plus law review articles since 1960 and several full-length books say there is. [150: p. 53]

And Roland H. Beason (1999) said

Unfortunately, this Article contains mainly research derived from law review notes and books and not from the case law. I point this out to emphasize that because of judicial inaction there is no major body of case law to discuss. [47: pp. 583-84]

Dennis’s statement and the basis of Beason’s research are examples of much of the problem with the debate on the Second Amendment. The fact that something is published does not make it credible. Books are published in order to make money. And much of the scholarship in the area of the Second Amendment is found in law-review articles.

Law reviews are journals of legal literature that are published by law schools. Getting published in a law review is very prestigious in the legal profession. However, the reality is that articles that appear in law reviews are little more than glorified editorials, and the information that is contained in law-review articles is very suspect. There are a few possible reasons for this. First, although it is academically difficult for a law student to be selected for his school’s law-review editorial board, the fact is that students who are on law-review editorial boards are, nevertheless, students. They are not full-time editors. Although they may be dedicated to their jobs as law-review editors, they are still law students who are dedicated also to graduating from law school. Thus, they do not have the time to fact-check articles that are submitted to them. Second, being law students, they do not have the expertise to know, without doing extensive fact checking, whether or not the information in the articles that are submitted to them is true. And third, being law students, it is doubtful that they have the inclination to question seriously something that is submitted to them by law professors from prestigious law schools. Apparently, law students on the editorial boards of law reviews take what comes to them from supposed experts at face value.

Unfortunately, many Second Amendment scholars accept as gospel what is contained in books and law-review articles. They often cite books and law-review articles as authority without actually consulting primary sources to verify that what the authors of these books and law-review articles are saying is actually accurate.

Despite writing about the Second Amendment, some commentators have expressed doubt about what it really means. For example, Akhil Reed Amar (1992) said

Our Second Amendment is about protecting against a central standing army that’s going to be used by a national government to impose perhaps unpopular policies on a resistant populace. The core ideas of the Second Amendment are federalism and populism -- the right of state militias and again the right of the people collectively to prevent government tyranny. It’s not in its essense as originally written centrally about individual rights to keep and bear arms. I don’t want to say that that’s not included. That may be a part of it as well. I just want to suggest that all the individual rights discourse has obscured the federalism and majoritarian or populist cores of various clauses. [12: p. 344]

And Joyce Lee Malcolm (1986) said

The language of the Second Amendment, considered perfectly clear by the framers and their contemporaries, is no longer clear to us. Changed circumstances and long years of indifference have made it difficult to reconstruct the philosophy behind the right, let alone ascertain with any confidence the intention of its drafters. [357: p. 452]

An unnamed author (1964) said

Only if Congress were to attempt to disarm the entire population, or a large part of it, would a second amendment issue be squarely raised. Determining the constitutionality of such a radical and unlikely step would require a definition of what the militia is that the second amendment protects. It is conceivable that the Supreme Court might hold that the militia it discussed in United States v. Miller no longer exists in this age of military professionalism, and that therefore the second amendment protects nothing at all. On the other hand, it might say that a militia of private citizens armed with their own weapons is still necessary to the security of a free state, or is protected by the Constitution even if it is not. What the Court would do in such a predicament, however, can only be speculation, for Congress has shown no intention to take any action strong enough to raise constitutional doubts. [187: p. 784]

And Todd Barnet (1998) said

To summarize, the Supreme Court should squarely address the baffling interpretive problems of the Second Amendment to end the continuing controversy and confirm the fundamental nature of the right to bear arms. [38: p. 176]

In response to these commentators, there should not be any baffling or puzzling controversy regarding the Second Amendment. Exploring what the words mean will uncover its meaning.

Nelson Lund (1996) said

The precise scope of the Second Amendment’s guarantee, however, and its proper application in a world that has changed enormously since 1791, cannot be determined solely by reference to the Constitution’s text and history. Subsequent developments in the technology of weapons and in military technique have rendered the armed citizen wholly impractical as a substitute for standing armies and much less potent as a deterrent to despotism. At the same time, the increased destructive potential of small arms has raised new questions about the type of arms that may appropriately be left in civilian hands and about the regulations that may constitutionally be imposed on civilians’ use of their weapons. These questions will assume real importance if the Supreme Court takes up the Second Amendment with the same serious attention that it has given to the First Amendment and other provisions of the Bill of Rights. [350: p. 76]

But as we will see, proper research reveals that these issues are not even Constitutional ones.

An unnamed author (1969) said

Whether the framers of the American Bill of Rights intended to guarantee the individual’s right to keep and bear arms for any purpose or solely for the protection of the people is unclear. [f] [126: p. 795]

Proper research provides the answers to whatever might appear to be unclear about the Second Amendment. The same unnamed author (1969) said also

Unfortunately, there is virtually no discussion of the second amendment in the legislative history of the Bill of Rights. [c] [126: f. 82 on p. 796]

This is incorrect. There is plenty of documentary material that shows what the Second Amendment means.

Robert J. Riley (1974) said

Exactly what was intended by the second amendment is not capable of absolute determination. The original debates in the Senate of the First Congress were not reported, and those of the House dealt primarily with eliminating a conscientious-objection provision. Massachusetts’ Elbridge Gerry did comment briefly on the crucial role of the militia in preventing the establishment of the bane of liberty, the standing army. [f] [501: p. 516]

This is incorrect. The intention of the Second Amendment is indeed quite capable of being determined. However, to do so, we have to do proper research into what the words mean. Why is it that the other amendments to the Constitution are able to be deciphered, but the Second Amendment is not?

O’Hare and Pedreira (1992) said

However, historical evidence of the Framers’ actual intent regarding the scope of the Second Amendment remains unclear. Persuasive authority exists to support conflicting theories for interpreting the amendment. Because of this uncertainty, the onus is on the courts to provide a contemporary construction of the right to keep and bear arms. [422: pp. 187-88]

The evidence of the Framers’ intent is in the documentary record. And what is a contemporary construction, anyway? The Second Amendment is what it is and what it always has been.

Wade Maxwell Rhyne (2001) said

Only time, along with the political makeup of the Supreme Court, will determine what the Second Amendment means. [495: p. 541]

This should not be the case. What the Second Amendment means should be a matter of fact and not a matter of interpretation based on who is sitting on the Supreme Court.

One would think that we could in fact rely on the courts for some guidance as to what the Second Amendment really means. However, as we will see, the courts are just as lost in their interpretations of the Second Amendment as scholars are. Many courts have also expressed an unwillingness to attempt to get to the bottom of the Second Amendment. In State v. Buzzard (1842), a state appeal of the dismissal of concealed-weapon charges, an Arkansas court stated

But I am not aware that this right has ever become the subject of any adjudication in the Federal courts, or that any of the State courts, in adjudicating upon it, have given any exposition of the article under consideration, or attempted to define the right as secured by it. It may therefore be considered as an open question; and being one of interest and importance, and as I conceive clearly within the cognizance of the Supreme Court of the United States, an adjudication of that Court upon it, by which the extent of the right may be distinctly ascertained and definitely settled, can be readily obtained, and the rule of decision in relation to it be made uniform throughout the Union. [555: pp. 27-28]

In Cases v. United States (1942), a case we will discuss later, the First Circuit stated

Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line. [99: p. 922]

In State v. Bower (1971), an appeal of a conviction for possession and control of a pistol after one’s being convicted of breaking and entering, a Rhode Island court stated

Bower’s initial contention, advanced here for the first time, is that the statute under which he was indicted infringes upon the right to keep and bear arms which is guaranteed to the people by article II of amendments to the Constitution of the United States and by article I, section 22 of the state constitution. We do not reach that contention since established practice in this state precludes a defendant in a criminal case from challenging the constitutionality of a legislative enactment in this court unless he has first raised that issue on the record before the trial court with particularity and with clarity. [c] [552: p. 40]

In Application of Atkinson (1980), a case involving the denial of a permit to carry a pistol, a Minnesota court stated

Whatever the scope of any common-law or constitutional right to bear arms, we hold that it is not absolute and does not guarantee to individuals the right to carry loaded weapons abroad at all times and in all circumstances. [25: p. 399]

In Fraternal Order of Police v. United States (1998), a case involving a police association’s suit challenging an amendment to the Gun Control Act that prohibited possession of a firearm by one convicted of misdemeanor domestic violence, the District of Columbia Circuit stated

Analysis of the character of the Second Amendment right has recently burgeoned. [cs] Despite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right, for we find that the 1996 amendments fall into the narrow class of provisions that fail even the most permissive, rational basis, review. [c] [195: p. 1002]

The Maine federal district court in United States v. Miles (2002), a motion to dismiss an indictment for making false statements regarding a protective order in connection with attempts to purchase firearms, stated

Regardless of whether there is such a fundamental individual right, the restriction imposed by section 922(g)(8) is a narrow and reasonable one, and it passes constitutional muster even under a strict scrutiny test. [686: p. 301]

In United States v. Jackubowski (2003), an appeal of a guilty plea for possession of a firearm after a felony conviction, the Seventh Circuit stated

Our case law dealing with Jackubowski’s contentions is substantial and well-settled. The Supreme Court might some day tell us that we are wrong on these points. Until then we will adhere to our prior decisions. [669: p. 961]

The New York federal district court in NAACP v. Acusport, Incorporated (2003), a case involving a suit against manufacturers, importers, and distributors of handguns, stated

This is a case invoking state tort law; the Second Amendment limits only the powers of the federal government. [cs] Even if it were found to apply to the states, however, whatever view is taken of the Second Amendment is immaterial in this case. [cs] Ideological views of guns have nothing to do with prudent marketing. [407: p. 462]

In Nordyke v. King (2003), an appeal involving a local ordinance that prohibited firearm possession on county property, the Ninth Circuit stated

We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson. However, we have squarely held that the Second Amendment guarantees a collective right for the states to maintain an armed militia and offers no protection for the individual’s right to bear arms. [415: p. 1191]

In United States v. Rhodes (2003), an appeal of a conviction for a drug offense and known possession of stolen firearms, the Tenth Circuit stated

In United States v. Baer, we upheld the constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment. [c] Under United States v. Killion, this three-judge panel may not reconsider the question. [c] [702: pp. 875-76]

In United States v. Bermea (2004), an appeal of a guilty-plea conviction for being a felon in possession of a firearm, the Fifth Circuit stated

Bermea argues that 18 U.S.C. § 922(g) is an unconstitutional infringement on his fundamental Second Amendment right to keep and bear arms. [628: p. 510]

Then the court stated

A panel of this court cannot overrule a prior panel’s decision in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court. [c] No such decision exists. Accordingly, Bermea’s argument is indeed foreclosed. [628: p. 511]

The Washington State federal district court in Gregoire v. Rumsfeld (2006), a challenge to recommended military-base closings regarding the Washington Air National Guard, stated

The Governor’s claim that Washington’s Second Amendment right to maintain a well regulated militia would be violated if the Secretary implements the 2005 BRAC recommendations presents non-justiciable political questions. In order to determine whether Washington’s right to a well regulated militia was violated, this Court would have to determine the contours of that right. This inquiry would necessarily entail examining what constituted a well regulated militia, and would require a judicial evaluation of the appropriateness of the training, weaponry and orders given to the National Guard, determinations which were specifically held to be barred by the political question doctrine in Gilligan, [c]. [225: p. 1219]

The court stated also

Here, as the Court found in Gilligan, engaging in decisions as to the composition, training, equipping, and control of a military force are decisions constitutionally committed to Congress and the States and present issues for which courts are ill suited to manage. [c] Accordingly, the Governor’s Second Amendment claim is barred by the political question doctrine. [225: p. 1219]

In Hartridge v. United States (2006), an appeal of a murder conviction, a District of Columbia court stated

Finally, all of the appellants challenge their convictions for carrying a pistol without a license. This issue was not raised in the trial court. Where the challenge has not been raised in the trial court, we consistently have declined to consider it for the first time on appeal. [c] Furthermore, under Sandidge v. United States, [c], a panel of this court rejected a Second Amendment challenge to the CPWL statute, and we are bound by that decision, unless it is overturned by the en banc court. [cs] [260: p. 224]

In Andrews v. United States (2007), an appeal of murder and firearm-offense convictions, a District of Columbia court stated

The decision in Sandidge is binding on us as a division of this court. [c] As we recently stated in Bennett v. United States, [c], a case in which we considered a Second Amendment claim similar to the one now before us, appellant can not prevail because his challenges are foreclosed by this court’s binding precedents. [c] [17: p. 456]

Some courts even admit that they do not know what the Second Amendment means. The Texas federal district court in United States v. Spruill (1999), which involved a motion to dismiss an indictment for a charge of possessing a gun while being subject to a restraining order, stated

Someday there will undoubtedly be a clear cut opinion from the Supreme Court on the Second Amendment. Without more at this time, however, the Court chooses to follow the majority path and here holds that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership. [711: p. 591]

The court stated also

That the Second Amendment is generating such important research and debate among legal scholars and historians is a good thing. The eventual results should prove immensely helpful to the courts as we seek to come to grips with the new controversies now being raised for consideration. [711: p. 590]

In Nordyke v. King (2003), the concurring opinion in the Ninth Circuit stated

And though recognizing an individual right to keep and bear arms, government can within due bounds regulate ownership or use of weapons for the public good. We would make progress if the Supreme Court were to establish a doctrine of an individual Second Amendment right subject to reasonable government regulation. The decisional chips would thereafter fall where they may on the basis of particular cases and the delicate balance of their precise facts, aided by the complementary efforts of lawyers, scholars and judges. [f] The law would best put aside extreme positions and adopt an assessment of reasonableness of gun regulation, for this would place us on the right track. [f] [415: p. 1197]

While some commentators and courts speak with uncertainty about the Second Amendment, other commentators state with certainty what they think the Second Amendment means. For example, Kopel (1993) said

Based on a literalist reading of the Constitution, Second-Amendment advocates should lobby for repeal of all laws requiring a license to carry a gun. [311: p. 63]

And Judge J. Skelly Wright (1981) said

I shall give a very wide berth to the second amendment -- declaring the right to bear arms -- as an historical anachronism. [801: p. 294]

Senator Orrin G. Hatch (1998) said

There is a strong movement afoot in this country to recognize both the letter and intent of the Second Amendment and to allow each citizen to protect himself or herself, as well as his or her family. [261: p. 125]

And Scalia (1997) said

So also, we value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard. But this just shows that the Founders were right when they feared that some (in their view misguided) future generation might wish to abandon liberties that they considered essential, and so sought to protect those liberties in a Bill of Rights. We may like the abridgment of property rights and like the elimination of the right to bear arms; but let us not pretend that these are not reductions of rights. [520: p. 43]

Lund (1996) said

The Second Amendment unambiguously and irrefutably establishes an individual right to keep and bear arms. This conclusion, which is dictated by the language of the Constitution, is confirmed by an abundance of historical evidence. Nor is it contradicted by anything yet discovered in the Constitution’s legislative history or in the historical background that illuminates the intentions of those who adopted the Bill of Rights. [350: p. 76]

There is also the possibility that some of those who debate the Second Amendment have incentives to keep the Second Amendment debate going without reaching a final conclusion. For example, Lund (2000) said

It’s more fun to spend one’s time coming up with arguments and theories that explain why the Constitution should be interpreted to produce what we’re sure would be a better world than to figure out what its makers meant by what they said. [349: p. 717]

And Eugene Volokh (1998) said

The Second Amendment is sexy. People like to discuss it and tend to have strong opinions about it; the class discussion is always lively. At the same time, the students are unlikely to have investigated the amendment in depth in a college political science class, or to have talked about it much with friends (at least in Los Angeles). This makes it easier for students to take a fresh look at the matter. [754: p. 604]

And Volokh, Robert J. Cottrol, Sanford Levinson, L.A. Powe, Jr., and Glenn Harlan Reynolds (1998) said

A lecture, the old joke goes, is the process by which the teacher’s notes become the student’s notes, without passing through the mind of either. We law teachers try hard to avoid this. We try to teach our students to think critically, to struggle with the material, to challenge preconceptions and conventional wisdom -- the courts’, the students’ own, and (unfortunately rarest of all) the Framers’.

The Second Amendment, with its odd political valences, with its sparse and inconclusive Supreme Court case law, with its connections to both the structural provisions and other rights provisions, and with its downright scary implications, is a powerful tool for this purpose. Some call it a palladium of liberty, [f] others a dangerous anachronism. [f] Some see it as protection for a fundamental right, [f] others as a nulli[ty], [f] a provision with no real meaning that Madison used to do[] in the Antifederalists with sweet talk. [f] It arouses passionate debate even among the general public, probably even more than the Free Speech Clause or the Free Exercise Clause does. It should arouse similar passions among your students. Better yet, it might even arouse thought. [754: p. 613]

Are statements such as these really evident of a desire to get to the bottom of what the Second Amendment means? An interest in public issues should stem from a desire to solve problems and not from a desire simply to perpetuate the debate about them. Is the controversy about the Second Amendment caused by a lack of research? Is it caused by ideology? Or could it be that it is caused, at least in part, by a desire to sustain the debate in order to keep the issue alive?

TRYING TO RECONCILE THE TWO CLAUSES OF THE SECOND AMENDMENT

Malcolm (1994) said

Although the amendment’s drafters presumably believed it quite clear, the shared understandings upon which it was based have vanished and this single sentence has proven capable of an amazing range of interpretations. Its most troublesome aspect is the purpose of its pronouncement a well-regulated Militia being necessary to the security of a free state. Two hundred years after its passage there is no agreement why it is there or what it means. Was it meant to restrict the right to have arms to militia members; to indicate the most pressing reason for an armed citizenry; or simply to proclaim the need for a free people to have a conscript, rather than a professional, army? And what sort of militia did the framers have in mind -- a select group of citizen-soldiers, every able-bodied male citizen, or didn’t it matter? Emphasis on the militia clause has been proferred as evidence that the right to have arms was only a collective right to defend the state, not an individual right to defend oneself. Emphasis on the main clause with its assertion of the inviolability of the people’s right to have weapons has been cited as proof of an individual right to have arms. [358: p. 136]

This passage by Malcolm is a good example of perhaps the most common error in attempting to interpret the Second Amendment, which is the effort to reconcile what some call the Militia Clause and the Right to Bear Arms Clause. All of the following statements concerning the relationship between these two clauses are typical of the debate on the Second Amendment.

David E. Johnson (1997) said

Note that there are two distinct clauses within the sentence, one independent, and one subordinate. [T]he right of the people to keep and bear Arms, shall not be infringed, [f] standing alone, would state unequivocally that the right is individual in nature, and would leave no room for reasonable dispute. However, that tricky phrase, A well regulated Militia, being necessary to the security of a free State, [f] seems upon first reading to disturb that understanding. [285: p. 200]

He said also

The plain language of the amendment, without regard for attenuated inferences therefrom, shows that the function of the subordinate clause is not to qualify the right, but rather to explain why the right must be protected. The right exists independent of the existence of the militia, but because of the need for the militia in preserving the security of a free state, the people’s right must be protected. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized. [285: p. 201]

Reynolds (1995) said

Nonetheless, there is that troubling language about the well regulated militia. The Second Amendment does contain a preamble of sorts, and although there seems little enthusiasm for paying attention to the Preamble to the Constitution itself, [f] criticism of arguments in favor of a personal right to bear arms always seems to turn on that point. The argument is that because the Second Amendment opens with the words, A well regulated Militia, being necessary to the security of a free State, it must therefore not protect a right that can be asserted by individuals. Standard Model scholars disagree. [492: p. 472]

He said also

It would be interesting to see what would become of existing constitutional law if the Supreme Court gave the Preamble to the Constitution as much interpretive weight as critics of the Standard Model give the opening clause of the Second Amendment. [492: f. 46 on p. 472]

The Preamble to the Constitution is not actually part of any article of the Constitution. However, the preamble of (and not to) the Second Amendment is actually part of the Second Amendment. But the irony of Reynolds’s point and Johnson’s first statement is that, as this book will prove, even without the language of the preamble of the Second Amendment, the amendment would not protect an individual right to possess and carry weapons.

Scott A. Henderson (1999) said

Turning to the text, those who espouse the collective rights school argue that the justification clause places a limitation or a condition precedent on the right. [f] This would be plausible if the text read [t]o the extent a well regulated Militia is necessary.... [f] A look at the plain language shows that the clause’s function is not to qualify the right, but rather to explain why the right must be protected. [f] The right of the people is independent of the Militia, but the Militia depends on the existence of this right. [f] Thus, as long as this right exists, the Militia will provide the necessary ingredient to the security of a free state. [265: pp. 200-01]

And Marguerite A. Driessen (1998) said

This introductory language is, perhaps, a commentary on the times, a statement of some sort of independent import or independent intent but not interdependent with the subsequent clause. A well-regulated militia may be necessary to the security of a free state, but regardless, the individual right of the people to keep and bear arms shall not be infringed. [170: p. 26]

Powe (1997) said

If the drafters’ goal was to create an individual right to bear arms, they hardly could improve on the statement that the right of the people to keep and bear Arms, shall not be infringed. [f] Conversely, if the goal were to create instead a collective right, no amendment would have been necessary because existing traditions and the explicit text of the Constitution already recognized such a right. [f] The Framers apparently split the differences between these opposing positions in drafting the Second Amendment. [471: p. 1335]

Powe (1997) said also

Second Amendment interpreters offer a wide variety of readings of that Amendment’s text. No other amendment has its own preface. Consequently, all interpreters must decide how to balance the preface, [a] well regulated Militia, being necessary to the security of a free State, with the subsequent clause articulating a noninfringeable right of the people to keep and bear Arms. [f] [471: p. 1335]

And he said

A possible synthesis would be that the citizen has a right to keep and bear arms, but only to the extent that possessing weapons makes the citizen available for militia service. Under this construction, an individual could own a military weapon, but the government could prevent its use for either hunting or self-defense. [471: pp. 1339-40]

And Cottrol and Raymond T. Diamond (1995) said

To begin with, the first clause, discussing the well-regulated militia, seems to be the dependent clause. According to this reading, a well-regulated militia depends on the right of the people to keep and bear arms. The language does not support the opposite reading, that the right of the people to keep and bear arms depends on the maintenance or preservation of a well-regulated militia. It should also be noted that the Amendment has two parts: (1) an observation, or perhaps a cautionary note (A well-regulated Militia, being necessary to the security of a free State) and (2) a command or legal requirement (the right of the people to keep and bear Arms, shall not be infringed). The plain language of the first clause appears to impose no legal requirement or restriction on the federal government. Only the second clause indicates a right that the government cannot infringe. [133: p. 1002]

David T. Hardy (1986) said

The Second Amendment’s introductory clause, relating to a well-regulated militia, is not by its express terms a limitation or restriction of the right recognized in the following clause. It is, at best, an explanation of the partial motivation for creating such a right and not a statement of its outer boundaries. [254: p. 627]

Hardy (1986) said also

To consider the introductory clause to the Second Amendment a limitation upon the right expressly granted in the Amendment would be to enshrine inconsistency in constitutional interpretation. [254: pp. 627-28]

And Hardy (1987) said

At the time of the framing of our Constitution, the militia statement found its primary constituency among the gentry, particularly that of Virginia. The individual right to bear arms provision was primarily advanced by the Radical movement, particularly in Pennsylvania and Massachusetts. Only after the Constitution had received its crucial ninth ratification were the two precepts joined into a single sentence, thereby creating a constitutional package which addressed the demands of both schools of thought. Thus neither the militia nor the right to bear arms provision can be taken in isolation as a sufficient explanation of the second amendment, a fact made obvious by the first Congress’ retention of both clauses during its extensive paring of Madison’s proposals. [f] The second