Why Does the Second Amendment Refer to “The People”?

mikeyp

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Why Does the Second Amendment Refer to “The People”? – Doctors for Responsible Gun Ownership

Madison’s draft of the Second Amendment declares that “the right of the People to keep and bear arms shall not be infringed”. He could have left out “of the People” without loss of meaning if he intended to guarantee that natural right to all. Alternatively, he could have defined the class of protected persons with some other term. For example, the Third Amendment pertains to “the Owner”. The Fifth Amendment reads “No person . . . “ The Sixth Amendment refers to “the accused”.

Consistency in constitutional interpretation precludes assuming any word to be happenstance. And, of course, the ratifying generation accepted this limitation of right to “the People”. Regardless of whatever might have been on anyone’s mind in the 18th century, the Second Amendment was written and ratified with this constraint which we may not sweep under the rug.

Today, the debate concerning “the People” is focused on whether the right was intended to be limited to the militia. Instead, I wonder who Madison and the founding generation understood would be excluded from the class “the People”. (On occasion, the militia included a few individuals who would not have been construed to be full-fledged members of the political community.)

A 16th century perspective would imply that native Americans would be excluded from the class “the People”. However, this hypothesis is unpersuasive in that, by the 18th Century, it was clear that a policy of “no guns for Indians” was unnecessary and impractical. Hostile Indians had been driven far from territories well populated by colonists. Belligerent Indians on the frontier were being supplied with arms by French and other traders beyond the control of the English colonies. A 19th century perspective would imply that slaves and free blacks might be excluded from “the People”. While obviously true, it’s difficult to imagine that this consideration was high in the founders’ minds. Slaves were under the absolute control of their masters. Few Blacks were free and these were not deemed any threat in the 1780’s.

What was fresh in the minds of the founding generation was the Revolutionary War. Only 1/3 of the population were thought to have favored independence. Another 1/3 were indifferent. The remaining 1/3 were Loyalists and most of them were still around in the 1780’s. Revolutionaries disarmed Loyalists without the slightest compunction.

The hypothesis in this essay is that the right to arms was reserved to “the People” to preserve the majority’s power to disarm any who might not be loyal to the Constitution. This seems plausible for a federal government intent upon preserving and defending the Constitution. It seems incongruous to believe that the founding generation intended to allow an ambitious government to undermine the Constitution by disarming the People who ordained and established that document.

Today, as in the early 20th Century, there is a struggle for power between Progressives and Conservatives on opposite sides of the political spectrum. Control over our government shifts back and forth, or so it seems to partisans in the struggle. What is objective fact and what is perception is difficult to discern in politics. But it is clear that perception drives sentiment.

According to the Marbury v. Madison doctrine of Constitutional interpretation, the advocate able to persuade a majority of a Court’s justices prevails in the debate. Imagine if Conservatives captured a majority of seats on the Supreme Court, along with both houses of Congress and the White House. The question might arise as to the Constitutionality of a law disarming seditious inhabitants of the United States. Judges might be authorized to ask suspects: “Are you now, or ever been, a member of any Radical organization?” And, thereupon, issue an Extreme Risk Confiscation Order stripping any such suspect of his arms. Would Progressives be happy that a tool they wanted to use for their ends turned into a means Conservatives could use against them?

Such was the problem faced by abolitionists and Republicans before and after the Civil War. Supporters of Southern interests sought to outlaw concealed carry, or any carry for that matter, in part to prevent free blacks and political opponents from being able to defend themselves against extra-legal violence. As Karl Marx wisely implored his readers, “the workers must be armed and organized. The whole proletariat must be armed at once with muskets, rifles, cannon and ammunition, and the revival of the old-style citizens’ militia, directed against the workers, must be opposed.” Likewise, Chairman Mao declared: “Political power emerges from the barrel of a gun.”

To return to contempory usage, Progressives, as well as Communists and Democratic Socialists, see their political-economic visions as the inevitable course of history. Nevertheless, the dialectical ebb and flow of political power causes the “inevitable” to be reversed at times. Those committed to gun control advocacy should bear in mind that it is not inevitable that they will always be in control.

When Conservatives hold power, the interpretation of “the People” in the Second Amendment could shift the balance of power against Progressive objectives. Once accomplished, history shows that such change is not easily reversed.

The only policy that would be intrinsically resistant to power struggles among factions seeking to rule over an unarmed majority would be universal arms ownership, as is mostly the practice in America, Switzerland and Israel. In reverse order, Israel has near universal conscription of both men and women. While off-duty, those in service often carry their arms. After completing service, they are often licensed to carry government-owned arms. Switzerland has universal male conscription with a long period of reserve status. After military service is completed, veterans are permitted to keep their rifles. And, of course, in America we take the “right to keep and bear arms” as a badge of citizenship. Some judicial or quasi-judicial act is prerequisite to losing this right.

There is an important distinction between rights and privileges. A right is held generally by members of a class, e.g., citizens inhabiting a state enjoy the right to vote. A privilege is granted to specific individuals.

The line between a right and a privilege is often obscure. A privilege is often identifiable by the prerequisite of a license in the form of a certificate. Even so, the right to vote has traditionally been evidenced by a voter registration card. We speak of the privilege of operating a motor vehicle on public roads as evidenced by a driver’s license.

We can say with a high degree of confidence that holding a “right”, like the Second Amendment assures, precludes most tests or qualifications prerequisite to lawfully keeping and bearing arms. Constitutionally, one could be obliged to evidence membership in the class “the People” (however that broad term is defined). For example, one could be obliged to evidence having reached the age of majority, whether that might be defined as 16, 18 or 21. But on meeting the definition, one should enjoy the “the right” of “the People” without additional tests.

A citizen may be “dis-abled” of a right by law upon conviction of certain crimes or if adjudicated incompetent. Any such act of government must be held to strict standards of legal due process. We would not find it acceptable to strip an adult citizen of either the right to vote or to keep and bear arms based on a conviction for jay-walking or having an IQ below 123. We must be concerned with the propensity of government to excessively limit the standards for exercising the rights of citizenship.

People with felony convictions account for 8% of the population, that is, one-twelfth of “the People” can be denied their rights to vote or keep arms on this criterion of dis-ablement. That figure is small enough, and for a generally accepted reason, not to be alarming. However, 33% of Black males are felons. What if those convicted of misdemeanors subject to sentences of 2 or more years in jail and domestic violence crimes were added to that figure? The fraction of dis-abled members of this minority group might exceed 40%.

When should we begin to wonder whether this minority constituency would become unfairly deprived of their sovereign rights? As Thomas Jefferson put it: “[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The foregoing may illuminate some of the implications of the Second Amendment’s reference to “the People”. It should be out of the question for rights, such as to keep and bear arms, to be limited to arbitrary sub-classes such as those formally enrolled in state militias, sworn police officers, those privately employed in protecting the wealthy, or those who are left-handed.

The Supreme Court held in Heller v. D.C. that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Thus, the only truly politically correct approach to Second Amendment rights is near universal, even-handed, natural qualification with very limited exceptions. That requires, essentially, a “shall-issue” approach to the right of all qualified Americans to keep and bear arms.
 
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It's crazy how far we've come wrt laws and precedent. The lawyers are so greedy corrupt and petty that they would actually argue what 'The People' even means, like we've somehow separated ourselves from that construct to not know what a person is, so far as we've apparently lost our humanity. Stockholm syndrome?

honk honk
 
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"Today, as in the early 20th Century, there is a struggle for power between Progressives and Conservatives on opposite sides of the political spectrum."

I disagree with this statement....

This is what it should say.

"Today, as in the early 20th Century, there is a struggle for power between Communists and Americans on opposite sides of the political spectrum."
 

Dennis in MA

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Because you don't want to give a constitutional right to arm cats. Those F'ers are nasty and shouldn't have firearms.
 
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Because the 2a doesn't apply to the militia, it applies to the people. In some ways the 2a was meant to do what the CMP is meant to do- teach people how to shoot such that when they are needed competent citizen soldiers are ready to go.
 
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Read Federalist paper 46. It makes it all quite clear. It was written by James Madison - the same who wrote the bill of rights which includes the 2nd. Federalist paper 46 was an essay written in arguing for the ratification of the 2nd amendment. It makes it very clear what the 2nd is all about, and it removes all doubt as to it's intent when Congress ratified it.
 
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Thank god the militia was granted the right to bear arms, otherwise they'd be fighting with sticks and rocks.
 

Bob P

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Given that the Constitution starts with the phrase “We the People” the meaning of The People in the 2nd Amendment is quite clear. We the people, in order to form a more perfect union create the Constitution to define and limit the power and extent of the central government. We the people then go on to say that our ability to organize as free citizens to resist encroachment on freedom by force of arms is a necessity, that our right to bear arms shall not be infringed.
 

Cipher

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A lot of shitlibs forget that "the militia" and "the people" could be used interchangeably because of the way militias were organized. All men of fighting ability between 17-45 were defacto members of the militia. They already owned guns formed their own militias by state, town, whatever.
 

SERE

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'The people' fought a war over this.

The video is short, they can be strange, but it is a video I have used for years. It is part of their longer program.

 

Uzi2

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I'm so fvcking beyond tired of arguing the meaning of the 2A.

Come try to take them and you will assuredly die where you stand, end of story. If I have any advanced notice that you are coming, you won't make it here.
 
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Are not "the people" and "the Militia" pretty much one in the same in late 18th parlance, especially when they exist in the same sentence to refer to the same citizenry?
 

Radtekk

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The State needs a militia to keep it (not the government) secure. The State should NOT be able to use the militia to oppress the people. The people therefor MUST be allowed to retain (not be GIVEN, because self-defense is God-given) the right and ability to defend themselves from an oppressive State. Without people having the ABILITY to defend themselves from a tyrannical State, we would have Soviet Russia. Or Communist China. Or Venezuela. Or North Korea. Or Cuba. Or...
 

timbo

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The State needs a militia to keep it (not the government) secure. The State should NOT be able to use the militia to oppress the people. The people therefor MUST be allowed to retain (not be GIVEN, because self-defense is God-given) the right and ability to defend themselves from an oppressive State. Without people having the ABILITY to defend themselves from a tyrannical State, we would have Soviet Russia. Or Communist China. Or Venezuela. Or North Korea. Or Cuba. Or...
...New York, or California, or...80% of the rest of the US.
 

GiveMeLiberty

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Read Federalist paper 46. It makes it all quite clear. It was written by James Madison - the same who wrote the bill of rights which includes the 2nd. Federalist paper 46 was an essay written in arguing for the ratification of the 2nd amendment. It makes it very clear what the 2nd is all about, and it removes all doubt as to it's intent when Congress ratified it.
Agreed. It's beneficial to read both the Federalist and Anti-Federalist papers, lots of great insight.
 

Kevin_NH

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I can't see how anybody can look at how "The people" is used in context (in the Preamble Section 2, and all five mentions in the BoR) and come up with a "collective right" argument.
U.S. Constitution said:
We the People of the United States... do ordain and establish this Constitution for the United States of America.
. . .
Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States
See also Harvard Law Review.

Because you don't want to give a constitutional right to arm cats. Those F'ers are nasty and shouldn't have firearms.
Too late; and yes, they are.
 
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-B-

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We the people in order form a more perfect union ... it is all people of the nation any lawyer who perverts it the opposing lawyer should throw this out in their face
 

new guy

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It’s not the people as opposed to the militia, it’s The People as opposed to the Government.
 

Horrible

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A lot of shitlibs forget that "the militia" and "the people" could be used interchangeably because of the way militias were organized. All men of fighting ability between 17-45 were defacto members of the militia. They already owned guns formed their own militias by state, town, whatever.
The left completely ignores the “people”, and focuses on the “militia” as if it was intended to refer to a standing army.
 

Radtekk

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It’s not the people as opposed to the militia, it’s The People as opposed to the Government.
The left completely ignores the “people”, and focuses on the “militia” as if it was intended to refer to a standing army.
That was my interpretation, poorly worded, meaning that since the "State" needs a militia for the common defenseif it gets perverted and used against the people they should have the ability to fight back.
 
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The militia consisted of the whole people.

George Mason addressing the VA ratifying convention on June 16, 1788:

Mr. Chairman — A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.
  • June 16, 1788
George Mason - Wikiquote
 
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I think "the People" is remain consistency through the 10th Amendment, differentiating from Federal Government, the States, and the People.

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.

Of course, States got shitcanned in the Civil War and 17th Amendment.
 
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The 10th Amendment more or less says the powers not delegated or prohibited by the Constitution are reserved to the states or the people. So in the Constitution it doesn't prohibit me from owning a machine gun or any other kind of firearm.
 

jpk

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The 10th Amendment more or less says the powers not delegated or prohibited by the Constitution are reserved to the states or the people. So in the Constitution it doesn't prohibit me from owning a machine gun or any other kind of firearm.
This is in part why all federal laws on RKBA are not constitutional........the ONLY constitutional laws that the federal gov could enact on this issue of RKBA would be under the 14th to PROTECT an individuals RKBA from a tyrannical state (like mAss) seeking to infringe/violate that right in a manner that has been done similar to voting rights/etc

EDIT: The ONLY federal law I can think of that is actually constitutional would be most/all of the FOPA....because it protects a persons right to travel to/from.......
 
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