The arguments over whether the Second Amendment gives individuals the right to own guns goes on and on. The Second Amendment says:
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.
Those who say that the Second Amendment is only talking about an official militia and not about individuals must use some stiff grammatical contortions in order to make that case and strongly ignore history and early Federal law. One of the arguments is that the amendment is not talking about individuals but about militias. Therefore, some say, the amendment only speaks about the right of the States to have a militia, not about the right of individuals to bear arms.
That is not only a rather tortured grammatical construction, but flies against early Federal law. Yesterday I mentioned that the Second Militia Act of 1792 placed every “free able-bodied white male citizen” between the ages of 18 and 45 into the militia and required them to arm themselves at their own expense. That is, it was expected that EVERY male citizen would own a musket, a bayonet, cartridges, and a knapsack, and this was a legal requirement. Exceptions were made for groups such as Mennonites, Amish, Quakers, priests, pastors, etc., and there is no record of the requirement being enforced. Nevertheless, the expectation of the early Federal law was identical to the expectation of Swiss law. Males were to own guns at their own expense in case of the necessity of call-up by the government. Therefore, those who argue that the Second Amendment does not guarantee the individual the right to own guns have to go against early Federal law and the common legal interpretation of the time in which the Constitution was written. Moreover, all the way into the early 20th century, the open carrying of weapons in certain parts of this country was considered normal and unquestionable.
BUT, it is also true that those who argue that any type of weapon may be owned by an individual also cannot back that up from either early Federal law or early practice. Moreover, as weapons technology has developed, the courts have ruled that it is reasonable and of common sense that the government may limit the ownership of guns to a reasonable set. Let me give you an example. Given modern weapon technology, it is not at all unreasonable for the Federal government to restrict the ownership of Stinger missiles to the military. More than that, the infamous Saturday night specials have as their only purpose the commission of crimes. The courts have ruled that the state and national governments may use some reasonable caution. But, the recent Supreme Court case that was lost by the City of Washington, DC, makes it clear that no legal entity may altogether deny the right of individual citizens to own guns. As with many legal subjects, the solution is not always clear or easy. Often the courts must balance competing Constitutional, Federal, State, and Local interests in laws that are purposefully broadly written.
There is a final question that must be dealt with. Does the Constitution support or allow the formation of militias not linked to Federal or State governments?
===MORE TO COME===
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