The ACLU site explicitly says that they don't recognize the 2A as an individual right.[0]
> Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.
> In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment.
I am sad about this set of facts about the ACLUs position. Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
I have long been an ACLU member and donor. Despite my differences of opinion on some matters, I have been grateful that they have fought in the name of rights in a great many cases. I do wish they would take a broader view on their mandate on Civil Liberties, today and tomorrow.
Ironically, Hamilton was both wrong and right here. He was right that by enumerating rights in the BoR that it has empowered the government to view those rights as the only ones that are untouchable (and not even that.) However, he was wrong that the COTUS would stand on its own to protect individual rights due to its strict limiting of the government's ability to infringe those natural rights -- which it very much has done.
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
Later in life, even:
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson, letter to John Cartwright, 5 June 1824
> Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
This isn't even remotely true. The 10th Amendment, for example, explicitly concerns the rights of the states and not the individuals within them.
The phrase "well-regulated militia" should be a giveaway to you: individual human beings are singular, not plural, and the concept of a "well-regulated individual" doesn't make much sense either in the language of the framers. We've so profoundly distorted the original language as to effectively erase "militia" entirely[1].
No, if you read the antifederalist papers, you will find the text from which the bill of rights originated which more clearly show that it is an individual right.
> 7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
Both the first and forth amendments also use the wording "the people" to refer to an individual right.
Moreover, the militia is and was intended to be every able bodied male.
> The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
> (b) The classes of the militia are—
> (1) the organized militia, which consists of the National Guard and the Naval Militia; and
> (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
There's a reason the anti-federalist papers are not part of our legal and cultural canon: the anti-federalists lost. Their sole victory (a good one!) in our Federal government is the Bill of Rights, and even that was Pyrrhic in nature.
> Both the first and forth amendments also use the wording "the people" to refer to an individual right.
That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person." It's a particular kind of institution, one that the 2A recognizes must be well-regulated. That's why 10 USC isn't the "gotcha" that armchair scholars think it is: the general body of the population is the opposite of a well-regulated militia, even if they are perfectly eligible for service in either a militia or the armed forces.
And note: I'm not claiming that "well-regulated" means that the framers meant "full of regulation." The framers were clasically educated: their understanding of the world "regulate" is the non-personal version of "moderation," meaning something closer to "striking a balance." There is nothing particularly balanced about either a complete ban on arms (you will note that no liberal democracy on Earth actually does this) or our current clown show of private militias showing up to protests strapped with assault rifles.
Sure they lost, but we can look to their writings for aid in our understanding of the meaning. I'm not saying that the quote is binding in itself.
> That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person."
This is a weird take. There is no indication or grammatical reason that "people" and "militia" are convertible.
If you read the various state versions of the 2A many are more clear than the federal that it applies to individuals. There is a state court case
https://en.m.wikipedia.org/wiki/Nunn_v._Georgia
Also the infamous Dread Scott decision mentions it:
> It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
10 USC was not supposed to be a gotcha. It is showing that just as at the time of the founding, all citizens were expected to keep and bear arms, and thus also know how to use them so still does federal law reflect that.
Quick note: people are not protesting with "assault rifles" because one is defined as select fire and they are very expensive to acquire. Although I do wish that this was not the case.
And Heller, and non-binding opinions of it from the last 200 years.
If I interpret the first amendment to only apply to brown eyed people, and then defend that very odd interpretation, am I still a defender of the first amendment?
If you interpret the 4th amendment's "papers" to mean only tree-based sheets, not documents which might be electronic, are you really a defender of the 4th amendment?
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
That page neither argues that, nor supports the view that, "well-regulated" means well armed or well equipped.
The page argues that it means something like "running well", but the examples they give seem to me to fit better with a slightly different meaning that also matches the etymology of the word (in Latin a regula is a rule; it comes from the word meaning to rule or govern). I think "well-regulated" means some combination of: well organized, well governed, well adjusted, well controlled.
In the Second Amendment it may or may not have specifically the sense of "well organized/governed/adjusted/controlled by the nation's government". But it's definitely not just talking about a militia that has enough weapons, or a militia that is good at shooting the people it wants to shoot; a well-regulated militia is one that is well organized and that makes good choices about who to shoot and why.
(It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment. I think it's mentioned in passing, possibly exactly to reassure people who might otherwise worry that the 2A is trying to set things up so that armed mobs terrorize everyone. "For a free state to remain secure, it needs a militia -- yes, yes, of course it has to be a well regulated one -- and so the people must be able to have weapons.")
> It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment.
That's how I read it as well. In fact, I consider the whole first part of 2A ("A well regulated Militia, being necessary to the security of a free State,") as more of a quick justification that has no legal bearing on the actual right that follows ("the right of the people to keep and bear Arms, shall not be infringed.")
So, essentially, "A well regulated Militia being necessary to the security of a free State [begets that] the right of the people to keep and bear Arms shall not be infringed."
> It also seems clear to me that "well-regulated" is not there to be any part of the point of the Second Amendment.
Well, it's critical to the point in that a working militia can serve a purpose, and a broken militia can't.
Contemporary documents make the point of the Second Amendment very explicit - its purpose is to prevent the United States from maintaining a standing army. But that's not what it does or what it claims to do; that's just the reason it exists.
> Contemporary documents make the point of the Second Amendment very explicit - its purpose is to prevent the United States from maintaining a standing army.
It's worth noting here that this is frequently cited and correct, but misses a critical point: this was before permanent paramilitary police forces, and one of the main reasons for fearing the establishment of a standing army is that this armed force with a distinct and insular culture from the citizenry would inevitably be used for internal security as well as against external enemies; the fear of standing armies is perhaps most accurately understood as a fear of permanent, insular domestic security services extending so far as to fearing permanent defense forces that could be turned to that purpose.
I mean, you don't have to tell me. I'm on the record stating that the police are, by all definitions that do not refer to the actual word "police", a military body. Calling a soldier an "officer" doesn't mean he's not a soldier.
> not there to be any part of the point of the Second Amendment
Given how few words the Constitution uses to describe things, I have to assume there is a point of some kind to every word in the document. We've chosen to interpret all of these words in 2A to be irrelevant, but if the writers of the document intended that, why did they put them there to begin with?
> 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.
Then, the next time it appeared, it was reworded as
> A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
Before being whittled down to nix religious exemption and leave ambiguous who runs the militia
> 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.
Judging from the Congressional record nobody focused on the fact that the militia clause got flipped between meetings, so take from that what you will.
The thing that no one seems to remember about the 2A is that it was meant to establish a militia as opposed to a standing army, which was seen as an inherent threat to liberty. Obviously opinions on that subject have changed over the years, particularly after the militia let DC burn.
That does seem like a justifiable interpretation, and I'm inclined to agree. They mentioned militia for a reason. And it makes sense -- if the point of arming the citizenry is as a check on federal tyranny, then a militia is how it will have to happen. The idea that the 2A is about self-defense seems a very recent interpretation.
> 7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
I don't think it's actually just arms and equipment. It means 'well-ordered.' It's the ability to call up organize and elect leadership from the people at need, among many other things.
For example, Article I Section 8 provides Congress the power
"To make Rules for the Government and Regulation of the land and naval Forces;"
It's in a similar manner that the 2nd should treat 'regulated' militias.
More like 'appropriately armed' or 'properly equipped', no? "well-armed" and "well-equipped" imply a surfeit of arms and equipment, whereas well-regulated connotes balance or homeostasis
> Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008.
> In striking down Washington D.C.'s handgun ban by a 5-4 vote, the Supreme Court's decision in D.C. v. Heller held for the first time that the Second Amendment protects an individual's right to keep and bear arms, whether or not associated with a state militia. The ACLU disagrees with the Supreme Court's conclusion about the nature of the right protected by the Second Amendment.
[0]https://www.aclu.org/other/second-amendment