• The Second Amendment IS Gun Control Regulation

    Yes, they have had another mass shooting in the US. Yes, the debate rages on, eternally at an impasse. Yes, an eight-year-old girl was shot dead by an eleven-year old neighbour over a dispute about a puppy. But no, apparently Americans should not be able to amend a fricking Amendment. Gun control will infringe people’s rights!

    Except the text of the Second 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.

    A well regulated militia. Well regulated. Hmm, some kind of control. By whom? Self-control? It seems so. Perhaps, say, regulating themselves not to carry nuclear warheads? Of course. What about RPGs? Of course. What about assault rifles? Well…

    Let’s think, when have they needed assault rifles to defend against the State? Oh yes, Waco. Let’s allow cults to arm themselves to fend off those wacky SWAT teams. There is an arbitrary line drawn in what the term “arms” is allowed to include. What about machetes? Samurai swords? Why not those in public?

    As the New Yorker states, in answering the claim that change even needs to be made to the Second Amendment:

    The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding….

    Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both “keep arms” and “bear arms,” he demonstrates, were, in the writers’ day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” The one seemingly sound argument in the Scalia decision—that “the people” in the Second Amendment ought to be the same “people” referenced in the other amendments, that is, everybody—is exactly the interpretation that the preamble was meant to guard against.

    Stevens’s dissent should be read in full, but his conclusion in particular is clear and ringing:

    The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding…

    Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendment—indeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.

    Either way, whether seen from state regulation or external regulation, regulation is at the heart of the extant amendment.

    Category: FeaturedGun ControlPolitics


    Article by: Jonathan MS Pearce

    • Geoff Benson

      If the US were truly a democracy then gun control of some sort would long since have been introduced, as that is what the majority of its citizens favour.

      The trouble is that the US is a long way from being a genuine democracy. State populations vary in size from nearly 40 million to just a few hundred thousand, yet each has the same two senator representation. I’m not sure about the House of Representatives but I suspect that the same sorts of dynamic apply. This means that the lower populated, but highly conservative, southern states are able to carry the day despite their minority position.

    • Otto Greif

      18th and 19th century legal scholars recognized the Constitution protected an individual right to keep and bear arms.

      • Which ones?

        • Otto Greif

          Thomas Cooley, William Rawle, Joseph Story, to name the three most notable.

          • Any links or quotes?

            • Otto Greif
            • You read Rawle as saying that gun rights are disconnected from participation in a well-regulated state militia?

            • Otto Greif

              “The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people.”

            • Geoff Benson

              That’s an interpretation that means if citizens were to arm themselves with nuclear weapons then they couldn’t be prevented, and there’s little doubt that those who wrote the constitution did not intend that.

              Many Americans do not interpret the Amendment the way that you do.

            • Otto Greif

              No it’s not.

            • If by “the people” you mean literally everyone then surely Second Amendment rights should not stop at the prison gates.

            • Otto Greif

              Persons can be deprived of liberties subsequent to due process of law.

            • So minors definitely should have gun rights in schools? No prior legal process deprived them.

            • Otto Greif

              Try making point instead of asking dumb questions.

            • Making point:
              “The people” ≠ “Every citizen regardless of their fitness or willingness to serve in the state’s well regulated militia”

            • Otto Greif


            • Geoff Benson

              ‘Well regulated’ in the context in which it is used in the Second Amendment can be interpreted as narrowly or as widely as necessary, so as to achieve the result desired in the context of the time. That is, for example, how statutory interpretation works in the UK, and includes, inter alia, trying to assess the intentions of those who drafted the law.

              I see no reason to think that ‘well regulated’ could not be interpreted to mean that:

              Anybody buying a gun must be trained in its use and able to provide appropriate certification.
              All gun sales, whether private or commercial, must be registered, to include full details of both the gun and the purchaser.

            • Otto Greif

              Using that logic there is no reason to have a Constitution at all, and you cede unlimited power to the state.

            • Geoff Benson

              I think you are wrong on both points.

              If a constitution is worth having then it must be flexible, or else it starts to become sterile, and lacking relevance to progress. The U.K. has no constitution, or rather it has one that is unwritten, yet succeeds in being a democracy of the type that suits it; one that the people have brought about. The constitution suits the American people, and that is their right, but it can have disadvantages.

              The issue of ceding power to the state has the ring of ultra right wing dementia, of the sort prevalent in the 50s (and which I do hear from time to time). First of all, the US is a democracy, so the ‘state’ (whatever that means) is directly accountable to the people. Secondly, the separation of powers ensures that no single branch can act, for long anyway, that is contrary to the best interests of the people.

            • In the narrowest, 2 party, definition of democracy the world has, it is a wonder people like @OttoGreif:disqus spend so much time arguing about these issues and the Constitution and so little time about how to make their state MORE democratic. Right wing and even more right wing as choices!

            • Otto Greif

              The Constitution was written to limit government. The UK has no constitution, which is why the UK government has had greater success encroaching the rights of UK citizens than the US government has. Wouldn’t flexibility and “progress” also apply to separation of powers? Limiting the government ensures accountability, and you’re naively trusting of the state. The UK jails people for “offensive” tweets, maybe you should get checked out for dementia, because you’re clearly oblivious to what’s going on around you.

            • http://www.fastcoexist.com/3028590/the-10-countries-with-the-highest-national-well-being-see-the-us-anywhere

              Still puts us three places above you for wellbeing etc.

              I in no way feel my rights have been encroached upon (except, for example, where religion has been able to encroach, such as within the education system).

            • Otto Greif

              Many people don’t value liberty.

            • Geoff Benson

              It may just be that referring to the jailing of people isn’t your strongest point!


            • Otto Greif

              Jailing people for rape and murder is sound policy, jailing people for speech is tyranny.

            • Geoff Benson

              I don’t think ‘sound’ policy has anything to do with it, but I suppose this is a post about guns and not the US’ embarrassing incarceration rates.

    • Otto Greif

      “Well regulated” refers to the militia, not guns themselves, and in general meant to function properly.

      • So oit would be ok to bear nuclear weapons? RPGs? Machetes? Bazookas? or just what you decide in your head is appropriate?

        • Otto Greif

          Arms was understood as weapons suitable for individual and community defense.

          • Again, why assault weapons and not RPGs? When was the last time an assault weapon was needed for individual and community and defence? Because when it was written it was only rifles (a la muskets).

            So your logic appears to fail.

            • Otto Greif

              “Assault weapon” is a meaningless term. It should be obvious weapons like RPG’s that produce area damage aren’t defensive.

            • There’s another contradiction. You talk about defensive weapons, and then seemingly allow assault rifle, whose title is ASSAULT, in that group.

              Clear definitions are not hard to come by. It is not a meaningless term. Talk about squirming.


            • Otto Greif

              Your link to the Law Center to Prevent Gun Violence illustrates how stupid the concept of “assault weapons” is, not that you can tell because you know nothing about guns.

              Ownership of rifles the military defines as “assault rifles” is highly regulated, I’m not aware of any instances where such legally possessed weapons were used in a crime.

            • Thirty-seven percent of the police agencies responding to PERF’s survey reported that they have seen noticeable increases in criminals’ use of assault weapons” since the expiration of the federal ban.” Police Executive Research Forum, Guns and Crime: Breaking New Ground by Focusing on the Local Impact 2 (May 2010),

              You might also want to read this: http://www.vpc.org/studies/officeone.htm


              On Dec. 14, 2012, Adam Lanza used an AR-15-style Bushmaster semi-automatic rifle to kill 26 people at Sandy Hook Elementary School. Or did he? Ever since the shooting, there’s been a persistent rumor that Lanza actually used two handguns to kill his victims—not the Bushmaster. I get a lot of emails to this effect, and so I thought it would be worth my while to lay out some facts. Adam Lanza did use the Bushmaster in the Sandy Hook shootings, and anyone who says otherwise is wrong, wrong, wrong.

              My source for this is the Connecticut State Police, who apparently were also tired of fielding questions about Lanza’s choice of weapons. In January, they issued a news release to set things straight. Here’s the relevant part:

              The shooter used the Bushmaster .223 to murder 20 children and six adults inside the school; he used a handgun to take his own life inside the school. No other weapons were used in this crime. This case remains under investigation.


              etc etc

            • Otto Greif

              According to the military, Bushmaster AR-15’s are not assault rifles. The federal ban on “assault weapons” actually increased the numbers and availability of the sorts of rifles ignorant people call “assault” rifles, any noticeable increase of such weapons being used following the expiration of the ban is purely coincidental.

            • Bushmaster didn’t respond to TPM’s request to discuss the history of its guns. The company bills itself as the “leading supplier” of AR-15 type rifles in the United States. It makes both aluminum and advanced carbon-fiber-based AR-15s, and its weapons are used, according to the company, by “hundreds of police departments and law enforcement organizations nationwide, by the military of more than 50 countries worldwide.” Several Bushmaster rifles currently advertised on the company’s website appear to meet the reported description of Lanza’s weapon, among them the XM-15 M4-A2 Type Patrolman’s Carbine.

              Newtown was not the first time that a .223 Bushmaster rifle has been involved in violence that attracted national attention. In 2004, two survivors and the families of six people killed in 2002 during the Beltway sniper attacks reached a $2.5 million settlement with Bushmaster and Bull’s Eye Shooter Supply in Tacoma, Wash., the store from which John Allen Muhammad and Lee Boyd Malvo stole the Bushmaster XM-15 E2S used in the killings. The Washington Post reported Bushmaster contributed $550,000 of the settlement, and did not admit to any wrongdoing in the case.

              Unlike their military cousins — which have three-round burst settings — commercially available AR-15 type rifles like Bushmaster’s are semiautomatic, meaning one bullet per trigger pull. But a little searching on YouTube turns up numerous videos showing how quickly AR-15 type rifles can unload dozens of rounds and even one example of how to turn a “semi-auto into a full-auto machine using a household rubberband!”

              One estimate put the number of AR-15 type rifles made in the U.S. and not exported between 1986 and 2012 between 3.3 million and 3.5 million. (From 1994 to 2004, when the Federal Assault Weapons Ban was in place, certain semiautomatic rifles were outlawed, but not all of them — including, reportedly, the one used at Newtown.) According to the NRA, meanwhile, nearly half a million AR-15 types were manufactured in the U.S. in 2009. The AR-15 is simply the latest example of a military weapon that has become popular after soldiers returned home, gun advocates say. But there are other reasons for the gun’s current appeal.

              Some enthusiasts say AR-15s are popular because of how customizable they are. According to Joseph Olson, a professor at Hamline University School of Law in Minnesota and a member of the board of directors of the National Rifle Association, the guns are conversation starters at firing ranges. He told TPM he bought a Bushmaster in the early 1990s.

              “It’s all cosmetics and it’s all marketing,” Olson said, adding, a bit later: “It’s the American consumer getting what they want.”

              Advocates say semi-automatic rifles are also becoming more popular for home defense. A recent article in Guns & Ammo, titled “Long Guns, Short Yardage: Is .223 the Best Home Defense Caliber?,” said sales of AR-15 type rifles “skyrocketed” after the terrorist attacks of Sept. 11, 2001. The same article pointed to a 2010 National Shooting Sports Foundation survey which found that the second most popular reason for owning a “modern sporting rifle” — the polite term for semi-automatic rifles like the AR-15 types — was home defense. The first was recreational shooting.


              Really, you are defending the use of any gun which you rather fancy, but draw the line arbitrarily somewhere without really any good reason to do so. Or at least, you have not done so.

              Because in 1791 you sure as SHIT cannot argue that people were running around being able dozens and dozens of rounds per minute. The manual says it has an EFFECTIVE rate of 45/minute, but of course it can indiscriminately fire far more.

            • Otto Greif

              Try formulating an actual response, preferably after learning something about firearms.

            • I do come from a forces family, having shot guns and been in the Combined Cadet Force many years ago. I have 144 War Machine magazines in my loft. And then I grew up.

              Do you know how many real life guns I have seen in the last 5 years? 0. None. Nada.

              And my life is all the more enriched for it.

              This idea that the Constitution is some amazing document that can’t be touched is utter hogwash. I don’t have it. I don’t have the Second Amendment. Has it impoverished my life? Not in the slightest. My life is arguably far better and safer without it. Just check my local area’s gun crime stats over the last 50 years. Virtually nothing.

            • Otto Greif

              Impressive “arguments” you make.

            • Excuse me? Have you actually seen the “quality” of the arguments you have put forward here?

              You have babbled on here and there without once showing that your line isn’t utterly arbitrary and is contextually relevant to the scenario of 1791.

            • I have gelato

              The first link states the AR15s and AKs that Americans can buy over the counter aren’t assault rifles.

      • “Kid who has a gun for protection protects 3 kids into the hospital and protects a fourth kid to death. Glad he was protected. Bad stuff might have happened.” – Dan Yowell




        Ooh, when was the last time someone was shot at a UK university?

        Oh yes, never. Damn, if only we had that Second Amendment to change that!

        • Otto Greif

          When was the last the time you had a response that was both intelligent and relevant?

    • John Grove

      Some people think of the US Constitution as the “word of God”. I think this is a passé amendment which in my opinion has no place. I wish the U.S was more like England in this respect. Seriously, what community needs rifles?

      • Geoff_Roberts

        As part of a free society supported by the constitution, we are all entitled to express our opinions. The constitution grants us the rights and freedoms we enjoy today. There are also lawful ways to modify the constitution if the majority wants it changed.

        What community needs rifles? How about those who like to hunt? Rifles account for only a tiny percentage of gun crime. Handguns are what are used for the vast majority of gun violence and should be the focus of reducing gun crimes.

        • John Grove

          BTW, I am former infantry, I served my country. I stand by our right to express our opinion.

          My point is who needs to hunt in this and age? What are we still hunters and gatherers? This is the 21st century. Seriously, even hunting is passé. Buy food at the grocery store. Be a vegetarian. No one needs weapons, hand guns or rifles.

          • Geoff_Roberts

            So, John Grove gets to decide that people don’t need to hunt, don’t need weapons and should be vegetarian? Sounds a bit dictatorial, don’t you think? I guess in your mind personal freedoms and liberty are as antiquated as you think the Constitution is.

            • John Grove


              Didn’t you just state, “we are all entitled to express our opinions.” That is all I was doing. You seem to suggest that I can do that, but when I do you take great offense to it because my opinion is not that of yours.

            • Geoff_Roberts

              Yes, I absolutely agree with everyone’s right to express our opinions. Perhaps I misunderstood your intent as your previous posts seemed to demand that no one should hunt, no one needs weapons for self-defense, and we should all be vegetarian. If those are only your personal choices then fine. However, if you want to coerce those choices and opinions on others then I would strongly disagree with that.

            • John Grove

              I think you understand me now. I am not hugely anti-guns, I just see no use for them. Having lived for several years in Louisiana (Sportsman paradise), I have met many who claim to be “sportsman” which is nothing but a façade for some form of psychopathy for wanting to kill animals. I see nothing “sporty” about that. And for those few who do it for substance, I would query how they have enough money for weapons and ammo, but not enough for a loaf of bread and some peanut butter.
              My opinion would only be coerced if many agreed to me and laws were enacted to reflect this, which, as you know is not going to happen.