So, About That “Well-Regulated Militia” Part of the Constitution

By Glen Martin

Bay Area demonstrations by right-wing groups scheduled over the weekend fizzled in face of massive opposition protests, defusing fears that Charlottesville-like violence could erupt in San Francisco and Berkeley. Indeed, protests in San Francisco were peaceful, and the few scuffles that did occur in Berkeley seemed instigated by black-garbed Black Bloc protestors, according to many reports.

But people and groups associated with the “alt-right”—an amalgam of neo-Nazis, white supremacists, “citizen” militias, and hyper-conservative prayer groups—have vowed ongoing demonstrations in other American cities in coming months. And that’s led to profound public safety concerns.

Charlottesville, after all, wasn’t marked solely by the murder of a young woman by an ISIS-like car attack. Some of the most enduring and disturbing images of the event were of right-wing protestors openly toting assault-style long guns and semi-automatic pistols (including this video of a white supremacist who was arrested yesterday for discharging his pistol in the direction of counter-protestors).  It takes no great stretch of the imagination to contemplate the horrors that might have resulted if wholesale gunfire had erupted.

And though no firearms were in evidence at the weekend’s Bay Area demonstrations, some media have reported concerns that other elements may be arming themselves in fears of gun-crazed and goose-stepping hordes of neo-Nazis and white supremacists invading their neighborhoods.

The Second Amendment gives you the right to bear arms, but really, that’s the beginning point of the conversation…the intent is not totally clear.

Authorities in Charlottesville allowed demonstrators to display firearms because of the state’s “open carry” law. California’s firearm regulations are much stricter, but the basic right to carry guns in public remains murky. The language of the Second Amendment, which assures the right of citizens to keep and bear arms, is simultaneously explicit and opaque.

“The Second Amendment gives you the right to bear arms,” says Jesse Choper, a UC Berkeley Law professor emeritus and the former Berkeley Law dean. “But really, that’s the beginning point of the conversation. As is true with most of the Bill of Rights, the intent is not totally clear, and in fact, the language in the Second Amendment is particularly confusing.”

That confusion, of course, is largely due to this line: “…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.”

For decades, legal scholars and advocates on both sides of the gun control issue have differed over the intended meaning of the Founding Fathers. Did they mean that only those citizens who are organized into official militias by local or regional jurisdictions have the right to bear arms? Or that anyone can keep arms because they might eventually join a “well-regulated” militia?  And what about the storage of the arms themselves? Can citizens keep them in their homes, or only in armories that supply the cited well-regulated militias? Further, even assuming that every law-abiding citizen can own firearms, does that right extend to locked-and-loaded open carry in public?

Choper observes the U.S. Supreme Court tacked the issue in the 2008 landmark case, District of Columbia v Heller, and that the justices’ ruling defines basic gun rights today. The majority opinion for that case was written by the late Antonin Scalia, a fervent Constitutional “originalist” and ardent gun enthusiast.

“The interesting thing about District of Columbia v Heller is that Scalia had to accommodate the other four justices who ultimately sided with him, ” Choper says. “As a consequence, it provides a very limited interpretation of the Second Amendment. It stipulates that a person has the right to own a gun to protect himself or herself, family, and property. That’s it. The decision does not imply the right to carry a weapon in public, including public buildings.”

Just as it would be hard to punish cities in an open carry state for allowing open carry during demonstrations, it would also be difficult to challenge authorities trying to stop trouble before it starts by banning firearms.

When it comes to applying District of Columbia v Heller in the streets, continues Choper, “[Cities] can find themselves between a rock and a hard place. They want to respect the right of free speech, and they need to protect public safety. Given that [public carry] currently is not protected by the Constitution, cities have the right to enforce ‘no gun’ rules.”

But municipalities located in open carry states may choose not to invoke gun strictures; and that’s what appears to have happened in Charlottesville.  It raises the question: are cities that refuse to ban guns at public demonstrations liable if anyone gets hurt or killed?

“It would be an uphill battle to make liability stick for any [gun-related death] if the city is in an open carry state,” Choper says. “That isn’t to say authorities shouldn’t or couldn’t try to stop [people carrying guns during demonstrations]. So just as it would be hard to punish cities in an open carry state for allowing open carry during demonstrations, it would also be difficult to challenge authorities trying to stop trouble before it starts by banning firearms. All rules and laws have exceptions under extraordinary circumstances. No right, including the right to bear arms, is absolute.”

California cities, at least, are unlikely to face the dilemma of Charlottesville. Though the weekend demonstration planned by Patriot Prayer for Crissy Field was cancelled, San Francisco authorities had moved decisively to ban firearms from the event. Comments provided by John Coté, the spokesman for City Attorney Dennis J. Herrera, confirmed that state law prohibits the open carry of both long guns and handguns in urban and suburban areas, with some exceptions for counties with fewer than 200,000 people (not San Francisco County, obviously).

“Someone with a concealed carry weapons permit issued by a sheriff or police chief in California (not any other state) can carry a concealed handgun in parts of San Francisco, but San Francisco bars possession of all firearms, even with a concealed weapons permit, on city property, including city-owned parks,” Coté wrote.

Crissy Field, the site for the planned Patriot Prayer demonstration, is part of the federal Golden Gate National Recreational Area, and it conforms to all California state gun control laws. The open carry of firearms in public is illegal in GGNRA. Concealed firearms carried by people with licenses issued by California police chiefs or county sheriffs are allowed under some circumstances. However, the permit conditions for the Patriot Prayer event at Crissy Field prohibited all firearms, Coté stated.

So as things stand, it’s clear that officials and police have the right to curtail the open carry of firearms at public events and demonstrations. District of Columbia v Heller confirms that authority, however obliquely.  But the law is fluid, Choper observes, and that protean quality applies in particular to the Second Amendment.

“I once read it 20 times for a case, and I still have no clear understanding of it,” says Choper, “and I know something about constitutional law. And I’m not alone: remember, the Court split 5-4 on Heller. And [Neil] Gorsuch [recently appointed to SCOTUS by Trump] believes the Second Amendment should be interpreted as a strong defense of the right to bear arms. So things could change. But even Gorsuch can’t ignore the context of a regulation enforced under exceptional circumstances, such as those that could lead to injury or the loss of life.”

Circumstances, in other words, that involve inflamed partisans facing each other in public venues.

Filed under: Law + Policy
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I can appreciate your feelings and concerns about alt-right, neo-nazi hate groups. I caution you to remember that not everyone left of your views in general are neo-nazi hate groups. In fact, Patriot Prayer is not a neo-nazi group at all. Their primary mission, from what I can tell from reading for several days (and watching videos and corroborating data from several sources including CBS and the Washington Post), is to remind moderates on both the left and the right that they are the majority, that the far-left (Antifa/BAMN) and far-right (neo-nazis, KKK, etc.) are the minority and that they are both hijacking civil discourse. It is okay for people to have different views and perspectives, and we should be sharing them. San Francisco is now becoming known for shutting down free speech, but that is not what you want. I know it isn’t. A conservative who thinks government has gotten to large or that more decisions should be made at the state level is not an enemy of, say, a transgender person. The conservative may very well support the many forms of gender identification out there. There are people who are socially left and fiscally conservative, and vice versa. They should be talking to each other looking for ways to solve human/American problems TOGETHER, not shutting down ideas because they hear the word “right” and it must be bad. That is not a path of love over hate. It is fear or hate or imagined moral or intellectal superiority over decency. That’s not what this country is all about, is it?
Whether the reason for the 2nd amendment is clear or not, i.e. “A well regulated Militia, being necessary to the security of a free State,” the limitation placed on the newly formed federal government itself could not be clearer: “the right of the people to keep and bear arms shall not be infringed.”
Well said, Carly.
“But really, that’s the beginning point of the conversation. As is true with most of the Bill of Rights, the intent is not totally clear, and in fact, the language in the Second Amendment is particularly confusing.” You understand the question, but it also helps to understand the premise behind it. To do that, you need to look at the preamble and the history that led to the amendment in the first place. The history is simple. A group of colonists fought their own government for control. They won. Every single one of the fighters, according to British law, were felons and traitors. By our standards today, not a single one of them, none, would be allowed to own a weapon. They knew this, and also knew that government, while needed, must be controlled. They wrote, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:[.]” The “founders,” whom you think of as Madison and Mason and Franklin, were not the ones who wanted the 2nd, but were opposed to it. I have to admit I would have also been opposed to it. I oppose it today. Not because of what it says, but because of how it’s being used. The 2nd was designed by the states, based off the Magna Carta, to limit and control government, and prevent it from becoming more than intended. Lawyers see this every day in 4th amendment violations by police, and 5th violation by cities with unconstitutional codes. The 2nd is there to add one more layer of protection between the government and the people. The founders didn’t want a 2nd, because it’s not needed. The right is protected by it’s lack of enumeration. Look, the 9th and 10th amendment make it clear. The right belongs to the people. It says it clearly in the 2nd. In the 9th, it makes it clear that if a right is not enumerated, it belongs to the owner and that the people own the right to bear arms. The 10th makes it absolutely clear that, “The powers not delegated to the United States by the Constitution, (The right to bear arms was not) nor prohibited by it to the States, (The 2nde prohibited the right to the states by declaring it a right of the people) are reserved to the States respectively, (the right was not reserved to the states) or to the people. (BINGO! The right belongs to the people) So what does it mean? It’s exceptionally clear. The right shall not be disparaged, limited, or barred. Look at it another way. You own a driveway. It’s your own way to the store. You have a city worker that keeps putting his truck in front of it. You find that others have the same problem with the city, so you get petitions, and approach the city, and force them to adopt the words, “Going to the store, being necessary to he survival of the residents, the right to enter and exit driveways shall not be infringed.” Next week, your driveway is blocked by the same man. He says, “File a suit, I’m not moving.” You do, and a judge rules, “That right belongs to people who engage in the business of delivering groceries. You’re not covered. You can find alternate ways to get in and out of your property.” So you fight, appeal and win. Now, the city is STILL blocking your driveway. So you file another suit. This time, the court rules, “Your car is too old, and not a delivery van. You cannot drive it on the roads, so why do you need this right anyway.” The point is, the people wrote the limits and placed them on the government, and the government hates being restrained. They want to pass the laws they want, and screw those whey harm. There is always a group out there, like Gladys Crabbits, who is determined to take a right from someone because they don’t like it, are scared, or just don’t like you - and will annoy a politician until your right is swallowed in the black hole of our lawbooks. These busybodies will work around any word they find, to deny the fundamental truth. It’s none of their business. Or in legalese, “The right to bear arms belongs to the people, there is no subject matter jurisdiction over it, to regulate or control it.”
Glen Martin mistakenly concludes that the Heller v. DC (2008) decision does not imply the right to carry a weapon in public. In fact, the holding in Heller does exactly that by way of concluding that the Second Amendment guarantee[s] that the individual right to possess and carry weapons in case of confrontation.” And that is exactly what Americans have been doing since the time of the nation’s founding - exercising their Second Amendment right right to possess and carry weapons in case of confrontation.”
Except that there is no such thing as a second amendment right. The right to bear arms is individual, and NOT secured by the 2nd. The 2nd is a limitation on the government, written by the people, to prevent gun control.
Unfortunately, the author has not addressed the effects on state gun control laws by the aggressive NRA preemptive bills. The bills currently winding through 30+ state legislatures seek to reduce states’ right to self regulate. They eliminate the individual cities and towns right to legislate for their own specific needs. VA has open carry everywhere. We have successfully fought these bills in NE for last two years. Omaha, with a high rate of murder of African Americans by gun violence can still keep records, write and keep laws and deny the public right to open carry. It makes no sense that Omaha be reduced to the same regulations as a rural community like O’Neill, with a very small population.
Unfortunately, the author has not addressed the effects on state gun control laws by the aggressive NRA preemptive bills. The bills currently winding through 30+ state legislatures seek to reduce states’ right to self regulate. They eliminate the individual cities and towns right to legislate for their own specific needs. VA has open carry everywhere. We have successfully fought these bills in NE for last two years. Omaha, with a high rate of murder of African Americans by gun violence can still keep records, write and keep laws and deny the public right to open carry. It makes no sense that Omaha be reduced to the same regulations as a rural community like O’Neill, with a very small population.
The right to bear arms does not rest on the population of a city. And as for black shootings, it looks like your flagship example of gun control, Chicago, is a disaster of epic proportions, yet, you still tout it as a success. I’m not sure if this makes you an idiot, or you want to see blacks dead, and are willing to make it happen by pushing the laws making it possible.
The idea that one state or one community can impose different restrictions on a constitutional right is proscribed by the equal protection clause of the 14th amendment. Prior to this amendment states had the power under the 10th amendment to severely curtail the federal bill of rights, however once the 14th amendment was ratified this power largely went away. We’re one to extend the logic of having states determine the scope of the second amendment to other rights such as the 4th or 1st amendment it would lead to a situation where the liberty of an individual would vary wildly from one state to another. Imagine if California severely curtailed the first amendment and required an author or journalist to have a permit in order to write and publish anything whereas in a different state such as Texas no such restriction would exist. Do you see the problem?
This article makes it sound as if the 2nd was purposely vague. Let’s first look at language. “The right of the people. ” In every other right in the constitution points to the individual. “The right to keep………shall not be infringed” “Keep” https://www.merriam-webster.com/dictionary/keep *to remain in possession of* “The right …..and bear…..shall not be infringed ” http://grammarist.com/spelling/bare-bear/ http://www.dictionary.com/browse/bear So above it is established that keep means possess and bear means to carry. Shall not is simple just as is looks and implies. No not never cannot in anyway Infringe http://www.dictionary.com/browse/infringe to commit a breach or infraction of; violate or transgress to encroach or trespass  Simply put the ammendment does not make any room for “common sense gun control” or and laws limiting the possession, type or carrying there of
I recall reading in The Daily Kos that the reason for the 2nd Amendment was to insure that a force would be available to suppress slave rebellions such as that of Nat Turner.
Another look at the Second Amendment Since others believe and cultivate something I do not see, neither logic or theory I can understand, I have been forced to study and relate my reading of the Second Amendment. In the making of our United States Constitution I have 49 plus reasons that help to explain my understanding of the Second Amendment. The Constitution of the United States was established and formulated as a result of the Articles of Confederation. Article 6, reflects part of that vision, “..nor shall any body of forces be kept up by any State in time of peace,… but every State shall always keep up a well- regulated and disciplined militia,…” If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). Articles of Confederation lists eleven (11) references to “person/s.” “If any person guilty of… “..and no person shall be capable of…” “..nor shall any person…” “..shall be protected in their persons..” “..nor shall any person holding any office…” “..granted or surveyed for any person, .. “..Congress shall name three persons..” “..list of such persons each party shall..” “..and the persons whose names shall..” “..nominate three persons..” “..provided that no person be allowed to serve..” “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”? “Person” is one as described by Merriam-Webster Dictionary as a “citizen”. “A person who owes allegiance to a government and is entitled to its protection.” Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.” Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…” In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references, there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times. It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.   “..No Person shall be a Representative..” (Article 1 Section 2) “..whole Number of free Persons,..” (Article 1 Section 2) “..three fifths of all other Persons…” (Article 1 Section 2) “..No person shall be a Senator…” (Article 1 Section 3) “..And no Person shall be convicted…” (Article 1 Section 3) “..no Person holding any Office…” (Article 1 Section 6) “..Names of the Persons voting for…” (Article 1 Section 7) “…of such Persons as any of the States…” (Article 1 Section 9) “…not exceeding ten dollars for each Person…” (Article 1 Section 9) “…And no Person holding any…” (Article 1 Section 9) “…or Person holding an Office of Trust of…“ (Article 2 Section 1) “…and vote by Ballot for two persons,…” (Article 2 Section 1) “…List of all the Persons voted for,…” (Article 2 Section 1) “…The Person having the greatest Number of Votes…” (Article 2 Section 1) “…and if no Person have a Majority,…” (Article 2 Section 1) “…the Person having the greatest Number…” (Article 2 Section 1) “…No person except a natural born Citizen,…” (Article 2 Section 1) “…Any Person be eligible to that ….” (Article 2 Section 1) “…No Person shall be convicted of …” (Article 4 Section 3) “…except during the Life of the Person attainted….”. (Article 4 Section 3) “…A Person charged in any State…” (Article 5 Section 2) “…No Person held to Service…” (Article 5 Section 2) “…The right of the people to be secure in their persons,…” (Amendment IV) “…and the persons or things to be seized….” (Amendment IV) “..No person shall be held to answer…” (Amendment V) “..nor shall any person be subject for the same offense….” (Amendment V) “…they shall name in their ballots the person voted for as President,…” (Amendment XII) “…the person voted for as Vice-President,…” (Amendment XII) “…all persons voted for as President,….” (Amendment XII) “…all persons voted for as Vice-President…” (Amendment XII) “…The person having the greatest Number of votes for President, …” (Amendment XII) “…and if no person have such majority,…” (Amendment XII) “..the persons having the highest numbers …” (Amendment XII) “… The person having the greatest number of votes…” (Amendment XII) “..and if no person have a majority,…” (Amendment XII) “…But no person constitutionally ineligible…” (Amendment XII) “…All persons born or naturalized …” (Amendment XIV Section 1) “… any State deprive any person of life, liberty, or property,” (Amendment XIV Section1 ) “…nor deny to any person within …” (Amendment XIV Section1) “…number of persons in each State,….” (Amendment XIV Section 2) “…No person shall be a Senator or …” (Amendment XIV Section3) “..and such person shall act accordingly….” (Amendment XX Section3) “…of the death of any of the persons from…” (Amendment XX Section4) “…case of the death of any of the persons from…” (Amendment XX Section4) “…No person shall be elected to the office…” (Amendment XXII Section1) “…and no person who has held the office of President,…” (Amendment XXII Section1) “..to which some other person was elected…” (Amendment XXII Section1) “…shall not apply to any person holding the office…” (Amendment XXII Section1) “..prevent any person who may be holding…” (Amendment XXII Section1) What am I missing?

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