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March 2, 2023 - Epoch Times
09:51
US Supreme Court Upholds 2nd Amendment: Gun Ownership is a Right of Americans | Facts Matter
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Right now, one of the arguments that's circulating online against private gun ownership is that the Second Amendment does not actually give people the right to own guns.
This argument, usually propagated by people who are outside of the legal profession, typically goes something like this.
The Second Amendment doesn't actually allow people to own guns.
It only allows the state to own guns in order to form something like a National Guard.
Now, the reason for that view is not really a mystery.
In fact, I myself, when I first began to study law in college, I thought the very same thing.
That's because within a modern context, the plain language of the Second Amendment is a little bit confusing.
Here is, just for your reference, exactly what the Second Amendment reads.
And so, it's quite easy to look at the surface of those words And assume that the right to keep and bear arms only applies to militias, who are in the service of protecting a state.
And in the modern context, that's something like a National Guard.
However, that is not, in fact, true.
And to understand why, well, we need to do two things.
Firstly, we need to smash those like and subscribe buttons so that this video, as well as this information, can be shared out to evermore people via the YouTube algorithm.
And then secondly, we need to look at a case that was put forth in front of the U.S. Supreme Court back in March of 2008, a case called District of Columbia v.
Heller.
In that particular case, what happened was that the city government of Washington, D.C. issued a host of different anti-gun regulations, including making it illegal to own a handgun unless the person received a special license from the chief of police.
And those licenses could only be issued for one year at a time, meaning you would have to go back and renew it every single year.
And so, there was a Washington, D.C. man named Richard Heller who was denied a gun license, and he took the city government to court.
After a bunch of legal back and forth, his case eventually found its way all the way up to the U.S. Supreme Court, where the principal question in that particular case became whether or not the Second Amendment actually protected the right of the people to keep and bear arms.
And after hearing the case, after listening to the oral arguments from both sides, and deliberating for three full months, the majority decision by the U.S. Supreme Court was that it does.
The Second Amendment does protect the people's right to keep and bear arms.
Here's a short summary of the conclusion from the majority opinion.
Quote, The term militia should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who are capable of being called to such service.
To read the amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the amendment was meant to protect.
Because the text of the amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, The operative clause should be read to, quote, Guarantee an individual right to possess and carry weapons in case of confrontation.
This reading is also in line with the legal writing of the time and subsequent scholarship.
Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.
Now, to better understand their rationale, let's take a moment to dissect the Second Amendment, starting by defining two specific words that it contains, words that people today might not fully understand.
Firstly, what do the founders, writing in the year 1791, mean by the term militia?
Because today we usually conflate The term militia was something like a state-run National Guard.
However, that is not what the word meant back then.
In the late 1700s, a militia referred to all free men who were capable of bearing arms.
Basically, a militia was defined as all able-bodied free men.
Here's how the majority opinion in the Supreme Court described it.
Quote, Unlike armies and navies, which Congress has given the power to create, the militia is assumed by Article I of the Constitution to already be in existence.
Congress has given the power to provide for calling forth the militia, and the power not to create, but to organize it.
And not to organize a militia, which is what one would expect if the militia were to be a federal creation, but to organize the militia, connoting a body already in existence.
This is fully consistent with the ordinary definition of the militia as all able-bodied men.
From that pool, Congress has plenary power to organize the units that will make up an effective fighting force.
Meaning, in plain English, that the term militia was understood at the time to mean the totality of all able-bodied free men.
And so that's the first term, militia.
The second term that we need to define within the Second Amendment is the reference to defending the security of a free state.
And so, what exactly was meant by a free state in the year 1791?
Well, unlike today, where the word state would typically refer to an individual state, such as Oklahoma or Kansas, the use of the term free state in the late 1700s referred to nation states, what we commonly refer today as countries.
Here's again the U.S. Supreme Court on this particular term.
The phrase security of a free state meant security of a free polity, not security of each of the several states.
It is true that the term state elsewhere in the Constitution refers to individual states, but the phrase security of a free state in close variations seem to have been terms of art in 18th century political discourse, meaning a free country or free polity.
Moreover, the other instances of state in the Constitution are typically accompanied by modifiers, making clear that the reference is to the several states, such as each state, several states, any state, that state, particular states, one state, no state, and the presence of the term foreign state in Article I and Article III shows that the word state did not have a single meaning in the Constitution.
And so, taking these late-17, early-1800s definitions into account, here's how the Second Amendment would read if it was written today, but we're still conveying the same meaning.
A well-regulated body of free men, being necessary to the security of a free nation, the right of the people to keep and bear arms shall not be infringed.
Then, the U.S. Supreme Court, within their majority decision, spent a good deal of time going through the relationship between the prefatory clause and the operative clause of the Second Amendment.
And without going into too much of the legalese, what they were basically laying out is that the first part of the Second Amendment, the prefatory clause, explains the reason for why this right is necessary, while the second part, the operative clause, explains what the right actually is.
And so, essentially, in order for free people to defend a free nation, the right of the people to keep and bear arms shall not be infringed.
And furthermore, when you look at it through a historical lens, and bear in mind the historical context, well, the true intention of the Second Amendment becomes rather clear.
That's because the founding fathers of our nation, they did not write the Second Amendment because they wanted to go hunting.
They had just finished fighting a bloody war against their own king because that king had become tyrannical against them.
And after the war, they codify the Second Amendment to the U.S. Constitution not so that they can go hunting, not even so that the people can defend themselves against petty criminals, but rather the Second Amendment within the Bill of Rights is there for one reason and one reason only, to protect the citizens of our republic from their own government if and when that government becomes tyrannical.
It's written to give the people of the individual states the ability to protect themselves, their families, and their communities from a government that That becomes a terror to its own people.
It was not put into place in order to allow the state governments to own guns.
That would be exactly one of the problems that the framers of the Constitution would want to avoid.
Instead, the Second Amendment to the US Constitution enshrines the right of the people to be able to bear arms and to defend our country against tyranny, both foreign and domestic.
Today, people can of course argue about whether we still need a Second Amendment.
People can go back and forth about whether it should be repealed or not.
But if someone says that the Second Amendment doesn't actually guarantee the right of the people to own guns, well, that's just not true.
The facts of the matter prove otherwise.
If you'd like to go deeper into these legal theories, I'll throw all my research notes down into the description box below this video for you to check out, including the entire majority decision in the Heller case.
If you're interested in this type of thinking, well, that decision is quite interesting to read and the link to it will be right there at the top of the description box.
Check it out if you would so like.
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And then let's head on back to the studio.
And then, until next time, I'm your host, Roman from the Epoch Times.
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