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Second Amendment: The right to bear arms

What is the Second Amendment?

There are two principle versions of the Second Amendment: one version was passed by Congress, while the other is found in the copies distributed to each individual state and later ratified by them

As passed by the Congress: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.

As ratified by the States: 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.

The Second Amendment Defined:

The Second Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by JamesMadison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 2nd Amendment:

The Second Amendment to the United States Constitution protects the right of the individual to keep and bear firearms.

The right to arm oneself is viewed as a personal liberty to deter undemocratic or oppressive governing bodies from forming and to repel impending invasions. Furthermore, the right to bear arms was instituted within the Bill of Rights to suppress insurrection, participate and uphold the law, enable the citizens of the United States to organize a militia, and to facilitate the natural right to self-defense.

The Second Amendment was developed as a result of the tyrannous rule of the British parliament. Colonists were often oppressed and forced to pay unjust taxes at the hand of the unruly parliament. As a result, the American people yearned for an Amendment that would guarantee them the right to bear arms and protect themselves against similar situations. The Second Amendment was drafted to provide for the common defense and the general welfare of the United States through the ability to raise and support militias.

Court Cases Tied into the Second Amendment

In District of Columbia v. Heller the Supreme Court ruled that the Second Amendment protects an individuals right to possess a firearm to use for traditionally lawful purposes, such as defending oneself within their home or on their property. The court case ruled that the Amendment was not connected to service in a militia.

Controversy

The gun debate in the United States widely revolves around the intended interpretation of the Second Amendment. Those who support gun rights claim that the founding fathers developed and subsequently ratified the Second Amendment to guarantee the individuals right to keep and bear arms. Those who want more stringent gun laws feel that the founding fathers directed this Amendment solely to the formation of militias and are thus, at least by theory, archaic.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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U.S. Jurisdictions resolved to not enforce certain gun control laws

Second Amendment sanctuary refers to resolutions adopted by some jurisdictions in the United States to not expend resources to enforce certain gun control measures perceived as violative of the Second Amendment. Examples include the Second Amendment Preservation Ordinance in Oregon[1] and the Second Amendment Protection Act in Kansas.[2] The "sanctuary" nomenclature is an allusion to sanctuary cities, jurisdictions that have resolved to not assist federal enforcement of immigration laws against illegal aliens.[3][4][5][6]

On September 10, 2013, Governor Sean Parnell signed HB 69.[7][8] The text can be read here.[9]

On March 19, 2014, Governor Butch Otter signed SB 1332.[10][11] The text can be read here.[12] Previously, HJM 3 was passed in 2009.[13] That text can be read here.[14]

On April 16, 2013, Governor Sam Brownback signed the Second Amendment Protection Act.[15][2] The text can be read here.[16]

35 out of 64 counties have adopted Second Amendment sanctuary resolutions:[17][18][19][20][21][22][23][24][25][26]

62 out of 102 counties and 1 city have adopted Second Amendment sanctuary resolutions:[28][29][30][31][32]

3 out of 23 counties have adopted Second Amendment sanctuary resolutions:[33]

Eureka sheriffs have vowed to defy the universal background check law in response to the universal background check law passed in February 2019.[34]

4 out of 16 counties have adopted Second Amendment sanctuary resolutions:[35]

30 out of 33 county sheriffs have signed a letter by the New Mexico Sheriffs Association vowing to not assist in enforcing certain gun control.[36]

25 out of 33 counties have adopted Second Amendment sanctuary resolutions;[37][38] Taos initially passed a resolution[39] but later repealed it.[40]

The SAFE Act was passed in 2013. After passage, New York counties started passing resolutions opposing the SAFE Act. There are currently 52 out of 62 counties with such resolutions. The New York State Sheriffs Association sued to block the law.[48]

1 out of 62 counties and 1 town have adopted resolutions against some gun control:[49]

1 out of 100 counties have adopted Second Amendment sanctuary resolutions:[50]

13 out of 36 counties have adopted Second Amendment sanctuary resolutions:[51][52][53][54]

24 out of 39 counties have sheriffs that have vowed to not enforce I-1639 while it is being challenged in court:[55][56][57]

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Second Amendment sanctuary - Wikipedia

Thegovernor of New Mexico took to Twitter on Tuesday and criticized a wave of"Second Amendment Sanctuary" resolutions passed bycounties across the state.

More than half of the state's33 counties have passedresolutions in opposition to a series of what they calledgun control bills being considered by the state Legislature. Such sanctuary resolutions often say sheriffs should not have to enforce measures they consider unconstitutional. Officials have said the resolutions are symbolic in nature.

Gov. Michelle Lujan Grisham, a Democrat,criticized the movement in a series of Tweets: "A few law enforcement officers in this state have been making noise about how they wont enforce gun safety measures because they dont like them. Thats not how laws work, of course, and its not how oaths of office work either."

Grisham wrote she would continue to advocate for gun reforms, despite"NRA propaganda, rogue sheriffs throwing a childish pity party or bad-faith critics."

Opponents of the legislation specifically a bill that wouldexpand background checks on gun sales have said it wouldviolate the Second Amendment by requiring the creation of a statewide gun registry to facilitate background checks.

Feb. 28: U.S. House passes bill extending time for background checks for guns

Feb. 25: Dick's Sporting Goods CEO Ed Stack still takes tough stance on guns a year after Parkland

"I take an oath to uphold the constitution, and I enforce all lawful laws that do not infringe on my constitutional rights, Mike Herrington, Chaves County Sheriff, told the USA TODAY Network.

Grisham disputed that position in her comments: "Background checks are constitutional. Courts have repeatedly upheld that. Its not debatable."

New Mexico Governor Michelle Lujan Grisham shown in this Tuesday, Jan. 29, 2019 file photo criticized a wave of"Second Amendment Sanctuary" resolutions passed bycounties across the state.(Photo: Morgan Lee, AP)

House Minority Leader Jim Townsend, R-Artesia,said Grisham's comments incorrectly minimized the opposition to the legislation:Thousands across New Mexico are filling county commission meetings to stand against her bills, I guess theyre rogue too."

Among the gun bills advancing through the legislature:

Grisham made national headlines in early February for her stance against President Donald Trump's assertion that there is a national security crisis at the southern border with Mexico. Shewithdrew the majority of National Guard troopsdeployed at the state's southern border on Feb. 5.

Contributing: Jessica Onsurez, Carlsbad Current-Argus;The Associated Press

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The second amendment has become a badge and bumper sticker, a shield for gun activists and scripture for much of the American right. But like other cherished texts, it is not as clear as many make it out to be.

The amendment reads: 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 most of the republics lifespan, from 1791 to 2008, those commas and clauses were debated by attorneys and senators, slave owners and freedmen, judges, Black Panthers, governors and lobbyists. For some, the militia was key; for others the right that shall not be infringed; for yet others, the question of states versus the federal government. For the most part, the supreme court stayed out it.

Americans have been thinking about the second amendment as an individual right for generations, said Adam Winkler, a law professor at UCLA and author of Gunfight: The Battle over the Right to Bear Arms in America. You can find state supreme courts in the mid-1800s where judges say the second amendment protects an individual right.

But for the 70 years or so before a supreme court decision in 2008, he said, the supreme court and federal courts held that it only applied in the context of militias, the right of states to protect themselves from federal interference.

In 2008, the supreme court decided the District of Columbia v Heller, 5-4 , overturning a handgun ban in the city. The conservative justice Antonin Scalia wrote the opinion in narrow but unprecedented terms: for the first time in the countrys history, the supreme court explicitly affirmed an individuals right to keep a weapon at home for self-defense.

Justice John Paul Stevens dissented, saying the decision showed disrespect for the well-settled views of all of our predecessors on the court, and for the rule of law itself. Two years later, he dissented from another decision favoring gun rights, writing:

The reasons that motivated the framers to protect the ability of militiamen to keep muskets, or that motivated the Reconstruction Congress to extend full citizenship to freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today.

This fight over history, waged by supreme court justices and unlikely allies and foes, goes all the way back.

People look at the same record and come to wildly different conclusions about what the view was in the 18th century, in the 19th century, said Nicholas Johnson, a Fordham University law professor who argues against Winklers view of 20th-century case law.

Attempts to parse original intent go all the way back to the revolution and its aftermath, when the countrys founders bickered about what exactly they were talking about. Carl Bogus, a law professor at Roger Williams University, has argued that James Madison wrote the second amendment in part to reassure his home state of Virginia, where slave owners were terrified of revolts and wary of northerners who would undermine the system.

The militia were at that stage almost exclusively a slave-control tool in the south, he said. You gave Congress the power to arm the militia if Congress chooses not to arm our militia, well, we all know what happens.

The federalist Madisons compromise, according to Bogus, was to promise a bill of rights. After weeks of tense debate, his federalists narrowly won the vote to ratify the constitution. He writes an amendment that gives the states the right to have an armed militia, by the people arming themselves.

A year later, the federal government passed a law requiring every man eligible for his local militia to acquire a gun and register with authorities. (The law was only changed in 1903.)

After the civil war, second amendment rights were again debated by Congress, which abolished militias in the former Confederate states and passed the 1866 Civil Rights Act, explicitly protecting freed slaves right to bear arms. A century later, the founders of the Black Panthers took up guns, symbolically and literally, to press for equal civil rights in California.

The states conservative lawmakers promptly took up the cause of gun control. In 1967, Governor Ronald Reagan signed the Mulford Act, banning the public carry of loaded guns in cities. The governor said he saw no reason why on the street today a citizen should be carrying loaded weapons.

Reagan later supported the Brady Act, a gun control law named after his aide, who was shot during an assassination attempt on Reagan in Washington DC. The National Rifle Association supported the Mulford Act but opposed the Brady Act, signed into law 26 years later.

Winkler, the UCLA professor, said that during the 1970s, a revolt among the membership profoundly altered the NRA overnight. Since the 1930s, the group had supported restrictions on machine guns and public carry, but angry hardliners took control over the organization in 1977, when moderates wanted to retreat from lobbying work. The group then began a decades-long campaign to popularize its uncompromising positions.

The NRA goes far beyond what the second amendment requires people walking around with permits, on college campuses, Winkler said. Their argument is its a fundamental right and freedom. People care more about values than they care about policy.

In the late 1990s, several prominent liberal attorneys, such as Laurence Tribe and Akhil Reed Amar, also argued for an individual right while advocating gun regulation. Gun control activists say they have not changed tack since the supreme courts 2008 decision. Scalia wrote a narrow opinion and listed several exceptions, such as bans on unusual and dangerous weapons and sales to domestic abusers and people with mental illness. He also wrote that states and cities could ban firearms from places like government buildings.

Lower courts have upheld many gun laws around the country since 2008, and the supreme court has declined to hear any second amendment cases since 2010. Attorneys and activists on both sides expect a looming fight over the right to carry guns in public, which the Heller decision does not address.

The courts generally strike a balance between the need for lawmakers to protect public safety and this notion of second amendment rights, said Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence. The Heller decision, she said, was entirely consistent with gun laws like background checks.

Theres a mythology here that the supreme court has said something about the second amendment that it hasnt, she said. I think most Americans dont like reading the footnotes.

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U.S.A. -(Ammoland.com)- In a split decision, a three judge panel at the Third Circuit Court of Appeals effectively ruled the Second Amendment of the Bill of Rights is a second-rate right, not entitled to the full protections of other enumerated rights. The opinion was filed on 5 December, 2018. The case is Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, No. 18-3170 (3rd Cir. 2018).

The two majority judges followed the trend of other Circuits where the Second Amendment is being degraded and reduced to second-rate status. Only a month ago, the First Circuit ruled the Second Amendment does not apply outside of the home.

The rogue Circuits are able to do this because the Supreme Court has been refusing to hear Second Amendment cases for nearly a decade. The Supreme Court only hears a limited number of cases. They are not required to hear all cases.

Some Circuit courts are gutting the Second Amendment by claiming it is not really a right. Rather, they say, it is a privilege the government may regulate if the government thinks it might do some good to regulate it. These Jurists seem embarrassed by the Second Amendment. They seem to believe their job is to limit it as much as possible, rather than to protect it as a fundamental right.

Judge Stephano Bibas wrote the dissenting opinion in the Third Circuit ruling. He is an outstanding jurist who was appointed by President Trump. At only 49 years old, he is already the 15th most cited jurist by the Supreme Court. His resume is impressive. It is easy to see why President Trump chose to appoint him. His dissent runs to 19 pages. The first four paragraphs eviscerates the majority decision. From uscourts.gov:

The Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy. 554 U.S. at 634-35.

Yet the majority treats the Second Amendment differently in two ways. First, it weighs the merits of the case to pick a tier of scrutiny. That puts the cart before the horse. For all other rights, we pick a tier of scrutiny based only on whether the law impairs the core right. The Second Amendments core is the right to keep weapons for defending oneself and ones family in ones home. The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period. That is the case here.

Second, though the majority purports to use intermediate scrutiny, it actually recreates the rational-basis test forbidden by Heller. It suggests that this record favors the government, but make no mistakethat is not what the District Court found. The majority repeatedly relies on evidence that the District Court did not rely on and expert testimony that the District Court said was of little help. 2018 WL 4688345, at *8. It effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government.

Whether strict or intermediate scrutiny applies, we should require real evidence that the law furthers the governments aim and is tailored to that aim. But at key points, the majority substitutes anecdotes and armchair reasoning for the concrete proof that we demand for heightened scrutiny anywhere else. New Jersey has introduced no expert study of how similar magazine restrictions have worked elsewhere. Nor did the District Court identify any other evidence, as opposed to armchair reasoning, that illuminated how this law will reduce the harm from mass shootings. Id. at *12-13. So New Jersey cannot win unless the burden of proof lies with the challengers. It does not.

If the Supreme Court grants a writ of certiorari (the legal term for agreeing to hear a case before the Supreme Court), Judge Bibas' reasoning is rock solid.

For those who do not follow these cases closely, here is a short explanation of the different levels of scrutiny.

Strict Scrutiny The highest level of protection, reserved for fundamental Constitutional rights. To pass this level of legal examination, a law, regulation, or other restriction of a Constitutional right must be required by a compelling state interest, and the restriction must be narrowly tailored to achieve that result. The burden of proof is on the government.

For example: There is a general prohibition on shouting Fire in a crowded theater, when there is no fire. This is a restriction on the First Amendment right of freedom of speech. The prohibition serves a compelling state interest of public safety. The restriction is narrowly tailored to ban shouting false information that causes severe, direct, physical, harm to others.

A corollary for the Second Amendment would be a general prohibition on firing a gun in a crowded theater when there is no reasonable, deadly threat.

Intermediate Scrutiny- The middle level of protection of less than fundamental rights. The law or regulation must serve an important government objective, and be substantially related to achieving that objective. The burden of proof rests with the government. This level is fairly new, only existing since 1976.

Rational Basis The lowest level of protection. Generally not applied to rights. It essentially is no protection at all. The party challenging the law or rule has the burden of proof. They have to show the government has *no* legitimate interest in the law, rule, or policy. They have to show there is *no* conceivable rational basis for the law, even if the government never stated one. Laws, rules, or policies are almost never struck down on this basis.

Judge Bibas shows the two majority judges collapsed the level of scrutiny from strict scrutiny to rational basis, while calling it intermediate scrutiny.

Second Amendment supporters know the Third Circuit ignored the rule of law and applied their own, cherished, leftist, Progressive, biases to gut Second Amendment protections in this case.

Judge Bibas, in his masterful dissent, shows how they did it.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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Third Circuit: Second Amendment is a Second Rate Right