Misleading folks about “black rifles”

MSNBC.com video story:

Should U.S. civilians carry M-16 rifles?

Since the expiration of the domestic ban on assault weapons in 2004, tens of thousands of M-16 rifles have been sold, leaving many to wonder whether or not this is a good thing. NBC’s Lisa Myers reports.

“Should U.S. civilians carry M-16 rifles?” Absolutely positively not. It’s illegal. The M-16 is a military weapon. Until/unless laws are changed, it’s illegal to own one.

Oh. They’re not talking about M-16 rifles. They’re talking about semi-autos.

(Don’t worry…they make sure to mention the scary black color, pistol grip, and high capacity magazine. They don’t mention, however, that the rifles they’re so worried about are less powerful than many sporting rifles that don’t cause nearly so many journalists to wet themselves in fear.)


  1. The M-16 should only frighten our soldiers. When a chick likes to fire one to ‘relieve the stress of the day’, that’s one pussy popgun. Check out this article on what our soldiers are being told with regard to when they can pull the trigger of that ‘scary weapon’: A U.S. military officer said the Army is still putting out rules of engagement (ROE) that are dangerous and could cause U.S. soldiers to get killed in the war on terrorism. Gen. David H. Petraeus, the commander in Iraq, recently expressed concerns that soldiers fighting insurgents and terrorists do not have clear guidance on the use of force. One recent session at the Army Judge Advocate General’s Legal Center and School in Charlottesville included an instructor who taught one class that ‘we must hesitate and be careful when we pull the trigger,’ the officer said. ‘They are teaching that even following ROE, while not illegal, may not be a good idea,’ the officer said. ‘They are teaching that to win the hearts and minds that we may have to take casualties through hesitations.’ This war makes Vietnam look like a model of sanity.

  2. US civilians should carry full-auto or burst fire M-16s. Whatever rifle is the current Infantryman’s rifle is exactly the arm that the folks who wrote the second amendment were referring to.

  3. Civilians and off-duty reservists walk around in Israel with M-16’s. In Switzerland they walk around with far better Sig rifles.

  4. The way I read the Second Amendment, what it is saying is that US citizens have the right to own and carry the weapons of a typical militia. What do most militias carry? Fully automatic AK-47s. I see the wisdom in there being such a right. What they were saying was, ‘the people of the USA have the right to be part of a self-regulated (but well-regulated) militia, in order to protect themselves adequately’. How it got to this ‘M-16s are evil stage’ I will never understand.

  5. I do not believe the ‘well-regulated’ reference in the 2nd amendment refers to what we would today consider goverment control. When Baron von Steuben drilled the troops at Valley Forge, he came up with his ‘regulations’ which were a manual of arms designed to get the troops to load, aim, and fire their muskets as fast as possible. Troops without this knowledge, such as the militia depicted in the movie the patriot, were of little use in battle. So the founders, who realized most people owned weapons, wanted them to be able to use them else they would be useless. Hence, we needed ‘well-regulated’ or well trained citizens in the use of firearms. As far as the type of weapons we can own, I believe there should be limits such as on crew served weapons.

  6. I always read ‘well-regulated’ as meaning, simply, that they had some kind of a training regimen together, in order to both increase effectiveness and to operate better as a unit. Spacey, what you say makes sense, and this may well be what they meant. But I never read ‘regulated’ as implying ‘government-regulated’. If they meant that, surely they would have said it explicitly. Your typical militia these days generally has access to crew-served weapons, specifically, medium-calibre machine-guns (e.g. PK), large-calibre machine guns (typically 12mm or .50′ guns mounted on trucks) and small mortars. Whether or not it would be a good idea for these to be generally available in the US, I don’t know. The way I read it, though, it’s unconstitutional to ban them altogether, but that’s an argument for another day. I don’t really see any reasonable way to read the 2nd Amendment which supports banning assault rifles, though, given that they are the defining characteristic of the modern militia.

  7. The 2nd amendment is an anachronism. A the time of its writing the use of local community based militia was relatively widespread and because we did not a defined borders and a true army, they were needed. The 2nd amendment was not ever intended to be a source of an individuals right to bar arms, but it was intended to enable communities to create militia’s for the community protection, and have its members to own weapons. Flash forward a couple of hundred years. We do not have militia’s in the sense that existed in 1789. True we have some guys running around calling themselves a militia, but just because you call yourself part of a militia, does not mean A) that you are in a true militia; B)you can own a machine gun. Now I am all for letting responsible, sane, and accountable individuals own firearms. We should regulate weapons on par with how we regulate cars. With additional controls on the more capable weapons. Class for handguns, shotguns, and long semi-auto rifles, Class B for Automatic rifles/military grade small arms, Class C for heavy small arms such as the .50 sniper rifles, heavy machine guns, class D for your rocket launchers and other explosive….and so on. Personally I do not have much use for an automatic weapon (except when killing the occasional zombie or two) but there is nothing unconstitutional with banning them. If there is, then its unconstitutional to ban me from owning a fully armed and operational M1 tank. (I need one for grocery shopping – it makes its own parking spaces!) That said, if my local community wanted to allow people to own M-16’s – go for it.

  8. Should U.S. civilians carry M-16 rifles?’ Hell, no! They should carry something useful, something firing .308 or 30-06 M2. No American, civilian or military, should carry a crappy little poodle-shooter. And neighborhood associations ought to pool to buy crew-served weapons.

  9. Note that, in most states, carrying an honest to God M-16 is not illegal, as long as one has jumped through the required NFA hoops. Furthermore, most state laws regulating open carrying of firearms only regulate pistols and possibly whether or not the firearms are loaded. Although some states do include clauses about not going armed ‘to the alarm of the public.’ Now, since the (unconstitutional) 1986 ban, M-16s have become very expensive. A rifle that once cost $500 or so now goes for over $10,000.

  10. The 2nd amendment is an anachronism.’ Then change it. Simple as that. Until then, the rights it guarantees are still part of the constitution, and denying them are unconstitutional. ‘The 2nd amendment was not ever intended to be a source of an individuals right to bar arms…’ Prove it. Why does it say ‘the right of the people’ if it’s not meant to be individual? Sorry Jame, I think that’s BS. I think you are reading into the Amendment what you want to read, not what it actually says.

  11. The first amendment is an anachronism too. I mean back then you needed a law guaranteeing your right to free speech and religion. But now that we live in such modern enlightened times, who needs those guarantees any more? That people who otherwise are rightfully frightened at the prospect of government misuse of power, wiretapping, secret prisons, etc, are so comfortable with the same government being the only entity to posses the most potent weapons never made any sense to me. The second amendment is the final balance of power granted to the fourth branch of government. When the power is distributed to the people that way, it is hard for the central government to abuse it. We may have a standing Army now that doesn’t require militia involvement, but that hardly obviates the need for the final check on government power. Reigning in tyrannical instincts will never be an anachronism.

  12. I remember discussing the 2nd amendment in college. When the issue of assault rifles came up, the other side would say, ‘you don’t need that to hunt.’ I would respond by saying hunting had nothing to do with the 2nd. Then I would get the response, ‘so you think having assault rifles will protect you from the US Army if the government ever became oppressive?’ After living through the last 4 years, I would say Yes.

  13. Jame, No where in the US Constitution do you have a right to a Driver’s License. The analogy is ridiculous.

  14. Nicholas – ‘Sorry Jame, I think that’s BS. I think you are reading into the Amendment what you want to read, not what it actually says.’ The short answer, is fine I am misreading it. So name me one Supreme court decision that struck down a gun control law on 2nd amendment grounds. You can’t there has never been a Supreme court decision that holds the individual’s right to bear arms cannot be infringed. If you decide to read the amendment the way you want, by basically parsing the second half of the amendment from the first. ‘ the right of the people to keep and bear arms, shall not be infringed.’ Then basically yes, gun control is unconstitutional. So is any form of prohibition on the right to gun ownership. Is that what you really want? thebronze – ‘No where in the US Constitution do you have a right to a Driver’s License.’ Actually you are very right and very wrong – Technically you could argue that the 10th amendment covers the issuance of drivers licenses. ‘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. ‘ That said, you hit the nail on the head – Yes the Constitution does not state anything about drivers licenses. Why? because cars did not exist. If you start down the road of the constitution did not say anything about issue ‘X’ very soon you start saying that almost everything is unconstitutional. That said, the constitution foresees future changes, so it provides broad powers that apply in general. Such as the federal governments ability to regulate interstate commerce. The framers had no idea about jets, but the constitution is broad enough to cover it. As a fail safe, the 10th amendment covers the gaps. Context and relevance is important when reading the constitution. Back in 1789 what did the phrase ‘bear arms’ mean? Fro Wikipedia ‘The Oxford English Dictionary defines the term to bear arms as: ‘to serve as a soldier, do military service, fight,’ dating to about the year 1330. And, defines the term to bear arms against as: ‘to be engaged in hostilities with.’ dating the usage back to about the year 1000 with the epic poem Beowulf[6].’ What does Militia mean? ‘In common usage, a ‘militia’ is a body of private persons who respond to an emergency threat to public safety, usually one that requires an armed response, but which can also include ordinary law enforcement or disaster responses. The act of bringing to bear arms contextually changes the status of the person, from peaceful citizen, to warrior citizen. The militia is the sum total of persons undergoing this change of state.’ In the context of bear arms and militia – what does the phrase well regulated mean? If you chose to only see the ‘shall not be infringed’ part the usage ‘well regulated’ is meaningless. Do not get me wrong – I fully support the concept that people should be able to buy guns. That said, I would state that I believe those that look to the 2nd amendment as a check on the governments power to control guns, are reading into the amendment what they want, and not what it actually says. Moreover, even if the Supreme court comes out and says that the 2nd amendment bars the federal government from enacting gun control, there has NEVER been a Supreme court decision that states that the 2nd amendment applies to the states.

  15. Hell, you might as well argue what the definition of ‘is’ is. We all know what the ‘right to bear arms’ is. It has been well known for 200 years. I have no fear of law abiding Americans who own guns of any sort. It’s those who don’t follow the laws who are the problem. Writing laws that restrict the ability of law abiding to defend themselves under the pretense these laws are really to prevent the oppression of the law abiding by the lawless is retarded. As it is, our constitution is a living document, and there is a process by which to ammend it. Instead of following that procedure, those who would take away our rights resort to using the tyranny of unelected officials to interpret our rights away or all forms of legal attacks including those which try to use our out of control tort system to make gun ownership a practical impossibility for anyone who is a contributing member of society.

  16. Jame, your post was well thought out. However, I still think that ‘well-regulated’ can refer to the proficiency of the person bearing the arms instead of what we would think as government control. From the wiki entry on Baron Von Steuben and his REGULATIONS. ‘Firing was done in eight counts and twelve motions: Fire! One Motion. HalfCock -halflock! One Motion Handle -Cartridge! One Motion Prime! One Motion Shut -Pan! One Motion Charge with Cartridge! Two motionsDraw -Rammer! Two motionsRam down -Cartridge! One Motion Return -Rammer! Two motions Complicated as they seem, the new firing REGULATIONS [my emhasis] were much simpler than those used by foreign armies and they sped up firing considerably.’ In article 8 of the constitution it states that congress is ‘To provide for organizing, arming, and disciplining the Militia…’ This wording suggests congressional authority over the militia. Yet when they adopted the 2nd amendment shortly thereafter, this language was not present. Why? Therefore, I think in context of that time, well-regulated could refer to the proficiency of the user. In addition, if the 2nd amendment was just about ensuring a militia, why was it even necessary since congress was already tasked with that duty in article 8? Merriam webster defines the term to bear arms as 1 : to carry or possess arms 2 : to serve as a soldier So I might be able to argue that definition 1 is to allow individuals the right to carry. On the term milita, I can’t argue with you. Your definition would appear correct. I will have to think about it more.

  17. spacey -‘This wording suggests congressional authority over the militia. Yet when they adopted the 2nd amendment shortly thereafter, this language was not present. Why?’ IMO in order to understand that provision you need to look at the whole provision which reads, ‘ ‘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;’ Basically, the provision requires congress to help support the creation and continuation of militia’s that are effectively controlled by the states. The states, appoint the officers and train the militia. Now the question that is raised – is why this provision event exists. If you look earlier in that same article you see a provision that states, ‘To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;’ When the constitution was written, the framers had an overriding goal to prevent the establishment of a monarchy or dictatorship – so they deliberately created a system that prevented any part of the government from obtaining too much power. One key aspect to prevent the abuse of power was limiting the military power of the federal government. The military power would reside with the states. One of the effects of this policy was the civil war. Since each state had its own militia – and the federal government only had a token force, you can see why the south felt they had a legitimate shot and being independent. From Wikiapedia ‘After the war, though, the Continental Army was quickly disbanded as part of the Americans’ distrust of standing armies, and amateur state militias became the new nation’s sole ground army, with the exception of one battery of artillery guarding West Point’s arsenal. However, because of continuing conflict with American Indians, it was soon realized that it was necessary to field a trained standing army’ Basically the provision you read is the formulation of that policy. Congress would pay the states to maintain a militia but the states would be in charge of the militia. The civil war basically ended this arrangement for the most part. So how does this relate to the 2nd amendment. The 2nd amendment has never applied to the states, because the 2nd amendment is protection for the states from the federal government. What the framers had in mind, is that the states would act as the final check on federal power. The states would retain their military power, so that in the event that the federal government overreached, the states would retain the ability to militarily contest the federal government. In order to keep that option open, the framers did not want the federal government passing laws that would prevent the states from maintaining their militia’s. So the second amendment prohibited the federal government from infringing on the states rights to maintain a militia. – Well regulated militia. Regulated does not apply to Baron Von Steuben regulations or to proficiency in arms. ‘…reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;’ If the states have the right to appoint officers and the authority to train the militia – its clear to me, that the creation and maintenance of a militia is a function of the states and not reference to an individuals skill in handling weapons. Nor can a group of individuals create a militia without the states approval.

  18. The short answer, is fine I am misreading it. So name me one Supreme court decision that struck down a gun control law on 2nd amendment grounds. You can’t there has never been a Supreme court decision that holds the individual’s right to bear arms cannot be infringed.’ This is a fallacy on a number of levels. a) Just because the supreme court says x, does not mean that x is correct. They can be wrong, you know. b) The supreme court has not heard many 2nd Amendment cases, as I understand it. There were some that could have and would have reached them, but the defendants were dead, or various other silly things that lead to there being no decision. There may be a case soon and we shall see. ‘Then basically yes, gun control is unconstitutional. So is any form of prohibition on the right to gun ownership. Is that what you really want?’ I don’t think that’s true, but basically, yes. I think that’s better than the government monopolising the use of force. I trust them less than I trust the average citizen. Jame, the definitions you quote fit in well with my reading of the Amendment I think. They show that the authors were intending to provide the people with a right to be part of a body of citizens who are armed and who can fight alongside each other, without centralized government control. I don’t think the 2nd Amendment, despite my reading of it as an individual right, necessarily means that there can be NO government regulation. However, I do think it means the government can’t prevent a sane and law-abiding citizen from being part of a local militia, and owning and carrying such weapons as that would require. I’m sorry but I don’t use the US Supreme Court as my judge of what the US Constitution says. There have just been too many wrong judgments. Just look at how they’ve mangled the Commerce Clause for a start.

  19. Jame, I still don’t understand why if, as you claim, the 2nd Amendment was only intended to allow the states to field armed citizens, it wasn’t worded more clearly to mean that, for example, ‘A well-regulated state militia being necessary to the security of a free State, the right of the states to arm their citizens shall not be infringed’ or ‘A well-regulated state militia being necessary to the security of a free State, the right state militia members to be armed shall not be infringed’? BTW thanks for discussing this rationally and without getting mad at me, despite my perhaps less-than-polite initial response… I truly am interested in possible alternative meanings, and yours is both the most sensible one I’ve come across that disagrees with mine, as well as the best researched. However, I still just can’t see how I can read that sentence so that it doesn’t grant the right to the people – all people – rather than to the states.

  20. I personally feel that there is no way that the Framers decided to throw in a ‘collective right’ or a State right in what is essentially a series of amendments meant to guaranty personal rights to the People. The Bill of Rights is meant to limit Federal power over the people, and the second amendment is no different, in my opinion. Anyway, all the extra-constitutional writings of the Framers points to their intention of creating an armed citizenry as a bulwark against tyranny. Of course, they also stressed the need for a ‘virtuous’ citizenry, because they knew a nation of selfish hedonists would not be able to sustain the rights that were their birthright. The abuses we see of these rights is a clear sign to me that the virtuosity of the people is in a bit of doubt. All the free speech and armed citizens in the world can’t make a country work if people aren’t willing to work towards common national ends, and it seems to me that national ends are more and more in conflict. The next twenty years should be pretty interesting.

  21. Jame, you make some good points. I liked your narrative on the farming out of the military to the states up through the civil war. I was trying to focus on the ‘well regulated’ part of the 2nd amendment because people I have spoken to often believe well regulated means government control. You stated ‘Regulated does not apply to Baron Von Steuben regulations or to proficiency in arms.’ I only used von Steuben as a reference to show in that day and age the word regulation meant some form of training or proficiency among troops. I did not mean to imply that congress somehow recognized von Steuben by adopting the 2nd amendment. However, your discussions have peaked my interest and I did find some other references to ‘well regulated’ refering to proficiency in arms. Here is a quote from Federalist 29 by Alexander Hamilton in which he references the phrase well regulated militia as being some form of expertness in military movements. He also suggests it would be too difficult to bring yeoman up to this standard. ‘The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.’ http://thomas.loc.gov/home/histdox/fed_29.html Note: There are several morsels of info from that link that could further your arguments as well. I only used this part because I thought it would highlight my take on the words ‘well regulated’ as referring to proficiency in arms rather than government control. Thanks for the discussion.

  22. Nice to see a reasoned discussion regarding the 2nd. However, unless we take into account the changes in our language over the decades, then its far too easy to make confident mistakes. (Ever get the chance to see what the entries are in a really old dictionary? Take one from the end of the 19th century to see just how much the meanings of even simple words have changed.) Well-regulated did indeed mean well trained, but over the decades the meaning has morphed to mean rules of law, or strict control, not rules of arms to train/operate by. And the old meaning of militia referred to all able-bodied citizens within a certain age range, not a national guard, which didn’t even exist at that time. Its why I have always thought it extremely dangerous to consider the Constitution as a ‘living’ document, as this is the route to changing the entire meaning of any section to suit the situation, rather than confirming the true meaning of the framers, and applying that to current conditions. I much prefer a Constitution that can’t be bent at the whim of lawmakers: I like it better as the guide it was meant to be.

  23. Interestingly, I guess that means for the constitution’s MEANING to remain unchanged, the words themselves probably have to change over time. So in a sense, the ‘living constitution’ people seem to have it right, only backwards. Kind of interesting to consider.

  24. This ‘militia right’ nonsense is just that. The government does not need to have rights enumerated. Society as a collective does not require rights either. The ‘people’ always refers to us citizens. Period. Individuals did have the right to own heavy weapons back then … the fracas at Lexington Green was started because a Mr. John Hancock bought a pair of cannons, and donated them to the town militia. As for drivers licenses … if I want to buy the fastest and most dangerous vehicle I can find … I don’t need to have a license, or even be an adult. You pay the dealer, and he will have the car towed to your property … and you can roar around on your back 40 all you want without any licenses whatsoever. This drivers license = firearms license notion might even have merit. Let us handle firearms in EXACTLY the same way. A 16 year old girl can then go on ebay, pay for a 20mm Vulcan cannon, have it delivered, and shoot it all day on her parents property without any government paperwork. She only needs a firearms permit if she carries it on a public road. Heh.

  25. spacey – ‘I was trying to focus on the ‘well regulated’ part of the 2nd amendment because people I have spoken to often believe well regulated means government control.’ IMO actually in the context of the constitution, ‘well regulated’ means exactly that, government control. You should understand the the constitution was crafted at a time when there was a real fear of the colonies devolving into waring factions. The Articles of Confederation were proving to be a disaster. One the key motivators for the Constitution was Shay’s Rebellion in 1786. One the chief issues, was an individual state being able to control its militia in the face of a popular uprising. ‘Because of both the lack of a significant standing army and of statutory power to intervene in the affairs of the individual states under the government of the time, the Congress of the Confederation was prevented from sending federal forces. The state government had always relied on the militia for civil order, but it was helpless in the face of wholesale resistance. Due to a lack of funds and some empathy for the Regulators, the Massachusetts General Court was unwilling to approve the raising of a militia. After months of indecision and desperate for a solution, in late December 1786, Gov. James Bowdoin and a number of Boston-area bankers raised a pool of private money and hired some 4,400 mercenaries (later legitimized as a militia), under the command of General Benjamin Lincoln. ‘ Shay’s rebellion was primarily an uprising of the poor/middle class against the high taxes that resulted from the debts incurred because of the revolutionary war. The rebellion itself terrified our founding fathers. ‘The events of Shays’ Rebellion over the coming months would strengthen the hands of those who wanted a stronger central government, and persuade many who had been undecided as to the need for such a radical change. One of the key figures, George Washington, who had long been cool to the idea of strong centralized government, was frightened by the events in Massachusetts. By January 1787, he decided to come out of retirement and to attend the convention being called for the coming May in Philadelphia. At the Constitutional Convention of 1787, a new, stronger government would be created under the United States Constitution.’ Wikipedia That said, the constitution could only of been passed, provided that the first 10 amendments be passed. The constitution was a compromise between those who wanted a strong central government and those who advocated states rights. The one thing I believe you should keep in mind, is that at the formation of the US, the states were for intents and purposes sovereign independent countries. Indeed the constitution maintains that the states are sovereign – see the full faith & credit clause / all American’s have dual citizenship – US & State citizenship / 9th amendment which prohibits the federal courts from adjudicating state legal issues and so on. Some of the most infamous compromises required for the constitution to pass – include the fugitive slave provision, ‘No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.’ The 2 senator rule, to insure that the small states would have a say in how the country was run. And so on. But overriding all this is a central fact shared by almost all of the founding fathers… They did not trust the ‘common man’ to be able to run the country. This is typified in a couple ways, 1) No direct election of the President – the electoral college system. (Just as Al Gore of his opinion on the electoral college system). 2) Originally, no direct election of Senators. The only body that had direct elections – coincidently had the shortest term of office. 3) All the states had properly qualifications, in order to vote. Now back to my original point – regulated militia. One of the key issues of the Shay’s rebellion was the states inability to raise funds to finance the militia. So you have the provision we discussed earlier – the federal government finances the militia – the states control it. The constitution is a creation of 13 sovereign states, that only entered into the constitution because of fear of rebellion, crushing debt, resolving trade disputes, and addressing other economic needs. In the context of creating a strong central government- consented to by independent states and right after dealing with a substantial rebellion in which a state’s militia basically failed to act, to include a provision that everyone should have a right to a gun not subject to government control, is a tad strange. The proof is the Whiskey rebellion of 1791 ‘George Washington and Alexander Hamilton, remembering Shays’ Rebellion from just eight years before, decided to make Pennsylvania a testing ground for federal authority. Washington ordered federal marshals to serve court orders requiring the tax protesters to appear in federal district court. On August 7, 1794, Washington invoked Martial Law to summon the militias of Pennsylvania, Virginia and several states. The rebel force they sought was likewise composed of Pennsylvanians, Virginians, and possibly men from other states.’

  26. The right of the people to keep and bear arms, shall not be infringed.’ Let’s examine the word ‘infringed’. They could be talking about adding some sort of decoration to an article of clothing, or it could mean that the government should keep their damn hands off the guns of law abiding citizens. You be the judge. Seems pretty simple to me.

  27. 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.’ Lets pick it apart a little, shall we? Yes it states that there is a need for a well regulated militia to protect, or for the security of a free state. It does not say that the right of the state militia, or anything like that in reference to whos right to keep and bear arms is involved. The necessity of a militia is used as a justifier for codifying it into the BOR. The right itself though belongs to The People, which is understood to indicate an individual right, just like in the rest of the BOR. As every law abiding male of age is to be considered Milita according to the constitution, that again implies that though the 2nd amendment references the militia, the right to keep and bear arms is an individual right. And before Congress pushed through their translation of Nazi Germany’s gun laws, it WAS acceptable to own everything from a .22 caliber pop gun to mortars and tank cannons. Were the unconstitutional gun control acts abolished, it would be acceptable for a member of the ‘Militia’ (thats all of us) to own, operate, and maintain artillary and armor (yep, howitzers and tanks included) as long as we did not violate anyone elses rights with them (like robbing banks and the like). Constitutionally you need to have a victim to have a crime (barring treaty violations and corporate malfeaseance). Who is the victim (besides my bank account) if I own an Abrams or Bradley? What if I want to own one to help defend my state as a well regulated (trained according to the original definition) militia member in the event of disaster or invasion? The american people need to get past the ‘knee jerk’ reaction that weapons and tools of warfare are ‘bad’. They are not inherantly bad, they are just like any other tool and if one group of people have better/more powerful tools than another, then the stronger party (usually the government) has a tendancy to opress the weaker (usually the people). For an example, look at Feudal Japan, where unless you were nobility (Samuri) it was illigal to own a sword.

  28. Yes , Washington used his appointed federalist judges to put down the Whiskey rebillion. And Jefferson and Burr retaliated during their terms in office by impeaching and removing every federalist judge they could. The Bill of Rights was passed over the objections of Hamilton’s crowd … it was a band-aid on a bad document. The anit-federalists that forced it through felt that Hamilton’s vague assurances that the right of individuals to keep and bear arms would be respected were not enough. I would suggest reading Tenche Coxe’s essays about the Second … as he was the person who wrote it and got it included in the BoR, if you really do want to know what the original intent was. Here is a spoiler: your ‘militia only’ theory is full of crap.

  29. Kristopher – I would suggest reading Tenche Coxe’s essays about the Second … as he was the person who wrote it and got it included in the BoR, if you really do want to know what the original intent was’ It is possible that I am missing something – As far as can tell, Tenche Cox was not a delegate to the Constitutional Convention. So I find it kind of hard to see how he wrote it and got it included in the Bill of Rights. That is not to say that he was not a man of influence but considering that John Adams described Coxe as a ‘wiley, winding, subtle, and insidious character. I would hesistate to hold his words over the facts of the issue. http://www.archives.gov/national-archives-experience/charters/constitution_founding_fathers_overview.html

  30. Yes … you are missing something. The Constitutional convention, and the passage of the Bill of Rights were two separate events. The BoR was passed after the Constitution was adopted, and over the Federalists objections.

  31. Yes … you are missing something. The Constitutional convention, and the passage of the Bill of Rights were two separate events. The BoR was passed well after the Constitution was adopted, and over the Federalists objections.

  32. Tench Coxe, 1788 Pennsylvavia continental Congress Rep, helping ramrod the BoR through the 1789 convention: http://www.davekopel.com/2A/LawRev/hk-coxe.htm D. The Bill of Rights Federalists cited the existing guarantees for personal rights in the state constitutions, [94] the presence of an armed populace, [95] and the lack of a granted power in the proposed Constitution to infringe upon individual liberties [96] as precluding the need for a bill of rights. In keeping with this approach, Coxe questioned the wisdom of considering amendments before the experiment had been tried. [97] In 1788 Coxe served as one of Pennsylvania’s last delegates to the Continental Congress, which held its final session early the following year. [98] In the meantime, the requisite nine states ratified the Constitution. [99] As a compromise with the Constitution’s opponents, who agreed not to oppose the Constitution further, many federalists reversed their opposition to a bill of rights in order to entice the remaining states to ratify. On June 8, 1789, in the newly formed U.S. House of Representatives, James Madison proposed a bill of rights that included the following: The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. [100] Coxe was in an excellent position to know what Congress was doing; he was living in New York City (where the first Congress was meeting) and was serving as an unofficial policy advisor to several leading congressmen. [101] In this capacity, he *367 helped shape the Judiciary Act of 1789, which created the lower federal courts; legislation regarding the President’s power to remove his appointees; and the patent bill. [102] Perhaps alerted to Madison’s proposals in advance of the general public, within ten days ‘A Pennsylvanian’ again appeared in print, this time in the Philadelphia Federal Gazette with his Remarks on the First Part of the Amendments to the Federal Constitution. [103] Probably the most comprehensive section-by-section exposition on the Bill of Rights to be published during its ratification period, Coxe’s Remarks included the following: As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms. [104] Coxe sent a copy of his essay to Madison along with a letter of the same date. [105] Madison wrote back acknowledging ‘Your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here New York .’ [106] Madison added approvingly that ratification of the amendments ‘will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.’ [107] Madison apparently saw Coxe’s defense of the amendments in the New York Packet the day before he wrote to Coxe. [108] The Coxe article also was displayed prominently on the first page of the July 4th celebration issue of the Massachusetts Centinel, [109] and was no doubt reprinted elsewhere. Just as Coxe had written energetically for the proposed Constitution, he now wrote with the same vigor for the proposed Bill of Rights. [110]

  33. Jame’ is wrong. The 2d is not an anachronism. If he were to have his way in licensing guns like cars, then he could not ban guns, so maybe he isn’t such a crackpot after all. No one is trying to ban cars afterall….

  34. The 2nd amendment was not ever intended to be a source of an individuals right to bar arms…’ Jame is right here, as far as the statement, per se, goes. (Well, change ‘bar’ to ‘bear’, at least.) The 2nd amendment is a limit on the State’s power to infringe an individual’s right to keep and bear arms. That right was understood to be pre-existing, and not something given to the individual from the State. (Using ‘State’ in the sense it was understood when the Constitution was written; a functioning government.) As far as ‘militia’ goes, it was defined at the time as all citizens capable of bearing arms. Since historically the militia could be called up at need at the local, county, state or federal level, trying to slip by with defining ‘militia’ as a local, community-based entity is a bit dishonest. When do you think was the last time that the militia was called up for service? Try Viet Nam era, since the draft draws from the unorganized militia as codified most recently in 10 USC 311a and 311b. The National Guard is not the militia, it is the organized part of it, just to derail that likely digression.

  35. Well this is lively way to brush up on my American history. In any – onward with the battle of dueling ideas. Source http://historymatters.gmu.edu/d/5200 With respect to Coxe’s eassay. Lets hear Coxe ‘Coxe himself described his essay in rather different terms. ‘I have,’ he wrote James Madison, ‘taken an hour from my present Engagements, which on account of my absence are greater than usual, and have thrown together a few remarks upon the first part of the Resolutions.’ Halbrook may be technically correct that Coxe did comment on all of the proposed amendments before Congress, but one wonders how much weight to attribute to a hastily written essay.’ On the influence of his essay. ‘To support his claim that Coxe’s view of the Second Amendment captures the intent of those who framed and ratified it, Halbrook claims that ‘Coxe’s defense of the amendments was widely reprinted. A search of the literature of the time reveals that no writer disputed or contradicted Coxe’s analysis.’ Actually, Coxe’s essay appeared three times. In 1790 there were 84 newspapers in America, which means that Coxe’s essay was ignored by more than 95% of the press. It is hard to see how this sort of evidence could prove that Coxe’s essay was representative of widely held views or that it reached a particularly wide audience. Nor can one infer much from the fact that no one bothered to refute Coxe. The absence of a rebuttal might just as easily signify indifference as acceptance. The most reasonable conclusion to draw is that Coxe’s essay was simply not very influential.’ With respect to Madison ‘Another gun rights scholar, Don Kates, asserts that Coxe’s essay was ‘authoritative–by virtue of having received Madison’s imprimatur.’ This view was endorsed by another individual rights legal scholar, Glenn Harlan Reynolds, who wrote that ‘James Madison approved of Coxe’s construction of the Second Amendment in a letter to Coxe dated June 24, 1789.’ But Madison never specifically commented on Coxe’s discussion of the Second Amendment. As historian Jack Rakove notes, ‘Madison did not discuss the substance or merits of Coxe’s interpretation of particular rights.’ What Madison did do was praise Coxe for defending the Bill of Rights in print, a move which Madison felt would have ‘a healing tendency.’ I agree that a good many people at that time viewed that there was an ‘individual’ right to bear arms. I would put Thomas Jefferson in that camp. That said, while there was a strong push for the ‘individual’, political/ doctrine power resided with the states. People today tend to view themselves as ‘Americans’ and only distantly think of themselves as citizen of state ‘x’. At that time, people put their state first – and considered the concept of a federal union as necessary evil, one that should be watched, and be warry of. This view remained a fairly dominate up through the civil war where the rally cry of ‘states rights’ rang from the hills only to be ultimately crushed by Lincoln’s union. In any event, the 2nd amendment only applied and still only applies against the Federal government. If California rules that all guns are banned – there is nothing the federal government/ federal courts can do about it. In any event, in the conext of the constitution and its relations to the authority of the States, the second amendment mearly protects the status quo – and prevents the federal government from usurping the state consitutions. (via the supremacy clause) ‘…at the time of adoption of the 2nd Amendment. Many state constitutions had a right to bear arms for the purposes of the maintenance of the militia. Many had laws that required men of age to own a gun and supplies, including powder and bullets.’ So as to the big question of the moment.. ‘Is the amendment one that was created to ensure the continuation and flourishing of the state militias as a means of defense, or was it created to ensure an individual’s right to own a firearm. Despite the rhetoric on both sides of the issue, the answer to both questions is most likely, ‘Yes.’ The attitude of Americans toward the military was much different in the 1790’s than it is today. Standing armies were mistrusted, as they had been used as tools of oppression by the monarchs of Europe for centuries. In the war for independence, there had been a regular army, but much of the fighting had been done by the state militias, under the command of local officers. Aside from the war, militias were needed because attacks were relatively common, whether by bandits, Indians, and even by troops from other states.’ http://www.usconstitution.net/consttop_2nd.html#context

  36. There’s a couple of things that have always puzzled me about the ‘collective right’ interpretation of the 2nd Amendment. We know the origin of each item in the Bill of Rights: the founding fathers knew of recent times (had in fact lived through some of the events) where journalists were imprisoned; or where people were persecuted for practicing a non-state sanctioned religion. They had seen cases where agents of the government could come into a house unannounced and seize property, where the accused were imprisoned for long periods of time without formal accusation, or without trial. Individuals had been forced to house and feed government soldiers (at the individuals expense, without compensation from the government). And yes, they’d seen the government come in and seize weapons. It was the gross violation of liberty–and the fear of a repetition of same–that drove the creation of the Bill of Rights. Now we look at nine of the ten amendments, and we seem to understand that these were written with the intent of limiting government power. We seem to understand that there were reasons to write them, and we understand that in order to preserve freedom there are certain things the government should not be permitted to do to the individual. For every one of the Bill of Rights, there is a reason and a historical event that drove its creation. Now how, in the context of that, are we supposed to take the word ‘militia’ in the 2nd Amendment and twist it such that it does what? It protects our ‘right’ to join the military? When, in the history of this nation, of the colonies, or of the entire world has there been a time or a society when this ‘right’ was violated? Among all of the worst dictators the world has ever known, who among them has ever said ‘Oh no, I won’t let the people join the army.’ It hasn’t happened. Never. The right of a person to join a nation’s military has never been abused, and therefore from the point of view of the founding fathers, did not need protection. Therefore, the only remaining possibility is that the 2nd Amendment protects our individual right (as it plainly says) to keep and bear arms.

  37. Y’know, this entire discussion is rather irrelevant. The only thing that’s relevant is what the 2nd amendment actually says. The ratified version has a single comma. The portion after the comma is a whole statement in it’s own right. The first portion is a justification for the statement following. It does not, however, restrict the second portion in any way, shape, or form. Ergo, ‘the right of the people to keep and bear arms shall not be infringed’ means exactly that, and one could argue that through the 14th it becomes applied to the states, although the issue has yet to be decided in court. Grammatically, the first part of the second amendment is useless. It’s bloody window dressing.

  38. The comments here are some of the best discussions of the second amendment I’ve seen in years. Lots of pertinent history cited here! This is the way to discuss things! Of course that means the individual right interpretation wins as well as the right to own a tank (if you can be afford it)! Anybody have a tie-in with the discussed history to the majority opinion in the D.C. gun ban appeals court decision (Parker v D.C.)?

  39. The DECLARATION OF INDEPENDENCE speaks of the right of the people to rid themselves of bad governments. Would that not include local, state, and federal govenments, and how would we do that without force of arms?

  40. Rick -‘It protects our ‘right’ to join the military?’ Actually under the collective theory the 2nd amendment does not protect our right to join the military. It protects the right of the ‘States – say Virginia’ to keep, maintain and control its own military force. The first thing a prospective dicator will do is assume control of those with guns, then sieze control of the press. The 2nd amendment prevents the Federal government from taking over or disbanding the State militias. In the early days of the republic, loyalty was first to the state, then to the union. As emplified by Robert E Lee, ‘In 1861, the south did secede and Virginia soon followed. Lee was offered a command in the Union Army but declined to accept the assignment because of his ancestry and loyalty to Virginia. It was a difficult decision for Lee to give up his career and his country, but his personal allegiance was to his family and his roots that were in Virginia.’ Ravenshrike -‘The only thing that’s relevant is what the 2nd amendment actually says. The ratified version has a single comma.’ I’ll have to disagree with you. IMO the only thing that is relevant is how we interpret what the amendment actually says and the body of law and precedent that forms our view point. While many cliam or assert that the amendment protects the individual right to bear arms – as a practical reality, the courts and society through our representatives do not subscribe to that point of view. IMO the 2nd amendment is an anachronism – If the amendment existed to protect the states (as I believe) the steady federalization of the past 200+ years and the civil war has ended the states ability to militarily resist the federal government. IMO the 2nd amendment is an anachronism – If the amendment existed to protect the individual right to bear arms – under the context that an armed populace would be able to defend itself and in times of need overthrow the oppressive federal government. Begs the question is the cost of that freedom to bear arms greater then any theoretical deterent effect an armed populace on the activities of the government. Basically its a question of risk assessment. Motor Vehicles Risk of death per year :1 out of 7,700 Motorcycles Risk of death per year :1 out of 91,500 Firearms Risk of death per year :1 out of 366,000 Air Carriers Risk of death per year :1 out of 2,067,000 Electric Current Risk of death per year :1 out of 695,000 http://hazmat.dot.gov/riskmgmt/riskcompare.htm We as a society except risk, that said, we demand that government act to mitigate the risk where possible. So, cars have air bags, crumple zones, motorcycle riders wear helmets, airplanes face a raft of requirements and electricians have certifications and wiring has all sorts of requirements and restrictions. So what makes guns so special? As a practical matter, for most respects the courts and politicians have recognized the need to balance the risk vs reward of gun ownership against needs of society. So we try to limit gun ownership, keep them out of the hands of criminal, require gun owners to register their weapons and demonstrate a degree of responsibility. Now I know some guy is going to say, that if we give up our guns, we have no way to resist the governement. Well try voting. That said, I personally rate my odds at holding my own vs the 82nd airborne somewhat on par with my chances inventing a perpetual motion machine.

  41. Jame said – ‘That said, I personally rate my odds at holding my own vs the 82nd airborne somewhat on par with my chances inventing a perpetual motion machine.’ Actually what was demonstrated in Viet Nam, Northern Ireland and now in Iraq is that a handful of motivated individuals with their small arms have a much better chance than you might think.