POLITICAL observations & opinions

* thoughts on the 2nd amendment … who can and cannot carry arms? what sort of weapons can be carried by private citizens? where and when can arms be carried and where and when not?

Posted by Lew Weinstein on January 13, 2011


2nd Amendment to the U.S. Constitution

  • adopted by Congress on December 15, 1791.
  • “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.”


  • considered by some to be consistent with the concept of the Second Amendment as protecting a collective right to firearms for members serving in a select militia.
  • others hold that while militia service is the stated justification for protecting the right to keep and bear arms, it is not a pre-condition on that right.
  • Adherents to this interpretation observe that the latter clause of the amendment still guarantees the right to “the people,” and, therefore, is not limited to members of a select militia.

well regulated militia

  • The term “regulated” means “disciplined” or “trained”. In Heller, the U.S. Supreme Court stated that “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”
  • Alexander Hamilton wrote in Federalist No. 29: “If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security…confiding the regulation of the militia to the direction of the national authority…(and) reserving to the states…the authority of training the militia”.

Supreme Court decisions

The primary U.S. Supreme Court Second Amendment cases include Robertson v. Baldwin, (1897); United States v. Miller, (1939); District of Columbia v. Heller, (2008); and McDonald v. Chicago (2010).

In Heller and McDonald the U.S. Supreme Court supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which U.S. militias have historically been armed.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Of the collective rights model that holds that the right to arms is based on militia membership, the U.S. Supreme Court, in Heller, had this to say:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.


Regulation or no regulation

Does the US Constitution, as interpreted by the Supreme Court, permit ALL citizens to bear ALL sorts of arms in ALL places? Clearly not. A civilized society, giving cognizance to the changes that have occurred since 1791, must therefore define and enforce …

  • who can and cannot carry arms?
  • what sort of weapons can be carried by private citizens?
  • where and when can arms be carried and where and when not?

State or Federal regulation

Some argue that these questions must be answered ONLY by the States and that Federal legislation is inappropriate. Given, however, the free and rapid access of people and guns between states, it would seem that State regulation cannot be adequate to protect the American people from the homicidal maniacs who live among us. We need federal law and effectively enforced regulations, consistent across all states, to keep lethal weapons out of the hands of those who would murder innocent Congresswomen and judges and children.

Congress and us

Congress is likely now to consider measures to protect themselves, and they should. However, they must not focus only on their own safety. Our representatives have been elected to protect us as well. And one of the important protections we need is from the wrong guns in the hands of the wrong people.



One Response to “* thoughts on the 2nd amendment … who can and cannot carry arms? what sort of weapons can be carried by private citizens? where and when can arms be carried and where and when not?”

  1. We have the Constitutional Right to Bear Arms and Defend Ourselves – 2nd Amendment

    “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.

    It is a right not a privilege, just like you have the right to live and breath.

    Right to Bear Arms is an unalienable right; it cannot be given to someone by someone else, they already have it at birth, and thus, it cannot be taken away no matter how good the reason seems to be.

    “Do not punish or deny the rights of the masses for the sins of the few”

    This applies to any and all rights and privileges stated in the Constitution of the United States.

    The Second Amendment is one of our most cherished. The right to keep and bear arms is what keeps government subservient to its citizenry. Without the right to bear arms, we would have anarchy in the streets, the criminals would still have guns, and violent crime would escalate.

    Thomas Paine: “Arms, like laws, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property.” We plan on exercising these rights to the fullest extent of the Constitutional Law.

    Our society today is brainwashed that when some people abuse their constitutional rights we must punish all of society and revoke that right and privilege.

    When some one uses a weapon, any weapon, gun, knife, pick, ax, saw, car, etc. they get prosecuted, when convicted, they are sentenced not all the people of the country.

    Abuse by some people has been going on since creation and will continue till the end of time. We must control and punish the abusers, not the whole society.

    Case and point is the punishment society is taking today due to terrorism. Since governments are helpless to fight and control terrorism they punish the masses in the name of safety and cause extreme economic hardship and the loss of our constitutional liberties.

    There are Nations that under their Laws citizens are permitted to posses firearms. Check out some of those countries. Crime rate has not increased. Abuses happen, the abusers are punished and not the rest of society.

    It is a known historical fact that the Criminal will always find a way to get a weapon.

    Restricting the average citizen from having a weapon to protect himself and his family, leaves the door open to the criminal to violate those citizens, due to the knowledge that the average citizen has no weapon and cannot protect himself and his family.

    A weapon is a tool like any other tool and should be used properly.

    A knife, pick, ax, saw, car, etc. is also a tool that must be used properly. It is not outlawed, is it?

    A car in today’s society is an absolute must. Do the citizens of this country know how many people are killed and injured by automobiles every year, it amounts to thousands, which is much less than with guns.

    And to those who would say this was but a “temporary violation” for the greater good, Ben Franklin admonishes;


    Folks, we live in dangerous times, a government that does not trust its citizens to bear arms, is a government not to be trusted by its citizens.

    As the threat to all of our liberties continue basically unabated, remember the words of the great political philosopher Edmund Burke; “The only way for evil men to prosper is for good men to do nothing.”

    The right to keep and bear arms should be of great importance to all Americans, if we are to remain a free country we MUST NOT let this right be taken from us Remember, freedom isn’t free. God Bless you, and God, please bless the United States of America.

    By: YJ Draiman, Northridge, CA

    PS The Supreme Court ruled on the Heller case at the end of its term in June, 2008. The Court, which found for Heller in a close 5-4 decision, wrote that the 2nd Amendment did, in fact, protect an individual right. While the court was careful to note that the case did not call into question any laws that regulate guns, it did state, unequivocally, that Heller and his fellow petitioners had a right to own guns in their home. The Court also ruled that while reasonable regulation may be permitted, the requirement that guns be locked and disassembled was not reasonable.

    Supreme Court affirms fundamental right to bear arms Tuesday, June 29, 2010; MCDONALD v. CHICAGO Syllabus The Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self defense. Pp. 5–9, 11–19, 19–33. The Second Amendment provides Americans a fundamental right to bear arms that cannot be violated by state and local governments, the Supreme Court ruled Monday in a long-sought victory for gun rights advocates. The 5 to 4 decision does not strike down any gun-control laws, nor does it elaborate on what kind of laws would offend the Constitution. One justice predicted that an “avalanche” of lawsuits would be filed across the country asking federal judges to define the boundaries of gun ownership and government regulation. But Justice Samuel A. Alito Jr., who wrote the opinion for the court’s dominant conservatives, said: “It is clear that the Framers … counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” The decision extended the court’s 2008 ruling in District of Columbia v. Heller that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” That decision applied only to federal laws and federal enclaves such as Washington; it was the first time the court had said there was an individual right to gun ownership rather than one related to military service.

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