Making Sense of the Meaning and Intent of the Second Amendment: It's Not Hard, Folks! | Eastern NC Now

    The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America. In his text, he explains exactly what the right is that is protected in the Second Amendment: "It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose..."

    Professor Randy Burnett of Boston University's School of Law sums up the history of the Second Amendment this way: "What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms. What we don't have - what we don't find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right."

    Professor Eugene Volokh, of the UCLA School of Law, comments: "Throughout the 1700's, throughout the 1800's, and up until the early 1900's, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states' right point of view." (States right to call a militia, that is).

    But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?

    "The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen." - The Court of Appeals for the 6th Circuit (2000)

    "The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia." - The Court of Appeals for the 9th Circuit (1996)

    The conservatives on the bench in the Heller case and then in the McDonald case got it right. They chose to be intellectually honest.

    References:

    DVD: "In Search of the Second Amendment (A Documentary)," produced and directed by David T. Hardy (2006). Second Amendment Films LLC

    United States v. Miller, 307 U.S. 174 (1939)

    District of Columbia v. Heller, 554 U.S. 570 (2008)

    McDonald v. Chicago, 561 US 742 (2010)

    Don B. Kates, Jr. "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983). Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf

    Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 - http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

    George Mason, the Virginia Declaration of Rights. Referenced at: http://www.history.org/almanack/life/politics/varights.cfm

    Virginia's Ratification of the Constitution, Elliott's Debates (June 25, 1788) - http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

    The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) - http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

    Teaching American History (an Intereactive Resource) - http://teachingamericanhistory.org/ratification/overview/