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It is certain tyranny for rights to apply to groups of people, and not to all persons as rights must. America is born out of a defense against such tyranny and its Constitution endows certain rights to all its people, not just a priveleged few. These rights are the country's fortitude, therefore they require a vigorous defense. The Constitution provides for this defense by allowing persons to be elected to government and by separating the branches thereof. The Constitution also provides for this defense in the Second Amendment as it reads, "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."
No right is absolute--the freedom of speech, for example, does not mean one can shout fire in a crowded theater. Just as well, the Second Amendment does not mean every American has the right to own a firearm as some are, for whatever reason, not capable of owning one. Therefore, the question one should ask here is how to keep arms out of the hands of those who cannot or should not own them. Collective rights advocates1 believe no individual is afforded any right to keep and bear arms so long as they are not police2 or federally armed personnel. What are the apparent bases for which collective rights advocates make their beliefs?
Firstly, that the Second Amendment is written, "to prevent the federal government from disarming state militias and that the meaning of "people" in the phrase "the right of the people to keep and bear arms" pertained to such militias.
Secondly, that the Second Amendment is an "anachronism [since] we no longer have the citizen militia like that of the 18th century."
Thirdly, certain Supreme Court decisions regarding interpretation of the Second Amendment:
U.S. v. Miller (1939) where the High Court held that the "'obvious purpose'" of the Second Amendment was to "'assure the continuation and render possible the effectiveness' of the state militia."
Burton v. Sills (1969) where the Supreme Court upheld New Jersey's strict gun control law.
Lewis v. United States (1980) where the High Court upheld a federal law banning felons from possessing firearms.
Maryland v. United States (1965) and Perpich v. D.o.D (1990) where "the Supreme Court held that the term 'well-regulated militia' refers to the National Guard."
Quilici v. Village of Morton Grove (7th Cir. 1982) where the Illinois Supreme Court and the U.S. Seventh Circuit Court of Appeals ruled that there was no individual right to keep and bear arms under the Second Amendment.
ORIGINAL MEANING OF THE SECOND AMENDMENT
That the Second Amendment is written to prevent the Federal Government from disarming state militias may be the case. However, it is difficult to maintain this position given the Federal Government already has the Constitutional authority to utilize state forces for national defense as well as internal disputes3.
Equally difficult is to define "people" as "militias" in the context of the Second Amendment. "If the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed."4
THE SECOND AMENDMENT AS AN ANACHRONISM
To say the Second Amendment is an anachronism is to virtually subordinate our lives and our country to the very tyranny The Constitution is intended to prevent. It suggests as time and people change, so must our rights. Interestingly, if one were to apply that logic to other rights, that would mean: since America is now a religiously diverse country, we don't need the freedom of religion; since we now have DNA tests, we don't need the right against self-incrimination; since we now enjoy a technologically advanced society, we don't need the freedom of speech.
SUPREME COURT CASES REGARDING THE SECOND AMENDMENT
In U.S. v. Miller, the Supreme Court held that the "'obvious purpose'" of the Second Amendment was to "'assure the continuation and render possible the effectiveness' of the state militia."
In Burton v. Sills, the Supreme Court upheld New Jersey's strict gun control law saying, in part, that the plaintiffs have "not established any Constitutional infirmity or the deprivation of any basic right."
The court also said in Burton, "As the language of the [Second] amendment itself indicates it was not framed with individual rights in mind. Thus it refers to the collective right 'of the people' to keep and bear arms in connection with 'a well-regulated militia.'"
Whether or not Burton or Miller hold true remains to be seen. "The Supreme Court recently interpreted the text of the Second Amendment and noted that the phrase "the people" in the Second Amendment has the same meaning in both the Preamble to the Constitution and in the First, Fourth, Fifth, and Ninth Amendments United States v. Verdugo-Urquidez, (1990)." And that therefore "The Court's construction of "the people" as used in the Second Amendment supports a holding that the right to keep and bear arms is a personal right retained by the people, as opposed to a collective right held by the States." (ibid.)
Lewis v. United States, wasn't about gun control. It was about whether a convicted felon could have a previous felony conviction used as a basis for a conviction of later crime.
Neither Maryland v. United States (1965) or Perpich v. D.o.D (1990) answered the question of does the Second Amendment guarantee an individual right to keep and bear arms. Maryland was about whether or not the U.S. Government could be sued under the Federal Tort Claims Act for a state guardsman's negligence in causing a plane crash, and Perpich was about whether or not the Federal Government could utilize state guardsmen over a state governor's objections. Moreover, Perpich didn't equate the militia with the National Guard. What it did do was affirm the Federal Government's supremacy over state authority on the use of the state militia.
In Quilici v. Village of Morton Grove (1982), the 7th Circuit Court of Appeals stated in their ruling, "in "United States v. Miller, the [Supreme] Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia." The 7th Circuit also noted, "because the Second Amendment is not applicable to Morton Grove and because possession of handguns by individuals is not part of the right to keep and bear arms, Ordinance No. 81-11 does not violate the Second Amendment."
That The 7th Circuit can say possession of handguns by individuals is not part of the right to keep and bear arms is just as mysterious as their interpretation of Presser v. Illinois (1886)5 and U.S. v. Miller (1939) when The 7th Circuit ruled on Quilici.
Presser said "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."6
U.S. v. Miller said, "the constitution as originally adopted granted to the congress power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the united states, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the second amendment were made. it must be interpreted and applied with that end in view."
Two points need to be made here: first, in deciding Miller, The Supreme Court never said there exists no individual right to keep and bear arms. Secondly, since Presser defined 'militia' as "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states" and since Miller said "with obvious purpose to assure the continuation and render possible the effectiveness of [the militia] the declaration and guarantee of the second amendment were made. it must be interpreted and applied with that end in view." it logically follows that every capable citizen, whether part of some type of armed service to this country or not, is guaranteed the right to keep and bear arms.
ANALYSIS
Tyranny requires nothing more than a populus without the ability to defend their rights. Among the other amendments to The U.S. Constitution, The Second Amendment exists to defend those rights. As with all rights it exists eternally, applies equally to everyone all the time and is therefore individual in nature. Yet there is still considerable debate over whether or not this right is, in fact, individual in nature as some consider the definition of the term 'militia' to pertain to only armed personnel. In effect, The Supreme Court has defined 'militia' to be all citizens of this country, apparently regardless of military status or what century it is. Therefore, one may safely assume that the right to keep and bear arms is an individual right retained by the people and that it should not be infringed.
FOOTNOTES