It’s time to start talking about the Constitution

Guest Column Guest Column 18 Comments


Guest Commentary
by Michael Schwartz

What has to be understood about guns is it doesn’t matter what polls say or what crime statistics show.  If it did matter and it was up to the public, we wouldn’t need an amendment in place to protect gun rights.

The Second Amendment guarantees civilians their right to own and carry guns used by the military.  That is the meaning and that is the purpose.

“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.” – Second Amendment to the U.S. Constitution, 1791

“Well regulated” means competent and properly functional.  If it were written today it would probably read “well trained and equipped.”  “Militia” means a fighting force made of civilians who are not professional soldiers.  “Necessary” means today what it meant back then: not an option, but essential.  “Security of a free state” means Americans across the country living under the experiment of self-governance.  “The right of the people” means the same thing throughout the writings of the documents that formed our country when “rights” and “the people” are used.  Rights are unalienable and given by nature or nature’s creator and “the people” are people within the borders of the United States.  “Shall not be infringed” means exactly what it says.

Because a trained militia is a requirement of a self-governing nation and because a militia is a military force made up of the country’s civilians, weapons used by our military, law-enforcement, and foreign military is exactly what the Second Amendment protects.  That means semi-automatic rifles and pistols with detachable magazines that carry 30 rounds of ammunition.

Make the argument that civilians should no longer have this type of access to arms used by the military and have that discussion.  Squirm around and furrow your brow while looking down your nose at all of America telling us that modern society no longer has the need for … blah, blah, etc.  But know that getting rid of the Second Amendment means two things: we are truly no longer a “free state,” with the self-governing experiment being over — and it means repealing and/or replacing the Second Amendment.  Not violating it as the California legislature does and as President Obama suggests.

Fortunately, public opinion and crime statistics both favor the side of the Second Amendment.  But as you debate the subject, be well-versed in the real purpose of the Second Amendment; to ensure that civilians have access to military arms that they can own and carry.  Just in case public opinion is swayed by emotion or the misinformation from media or interests groups, there is an amendment protecting that right.  It is no more a right to take away a civilian’s ability to own an AR style rifle via state law or presidential decree than it is to take away a woman’s right to vote, or an African American’s freedom, or everyone’s right to worship in the way they see fit.

It is time to stop pussyfooting around.  It is time to stop talking about “reasonable restrictions” and “common sense gun laws,” which are both simply code words for “gun ban.”  It is time to stop talking about home defense, hunting, and shooting sports.  It is time to start pointing out the Constitution and law.  I can easily see in Article 5 what it takes to amend the Constitution.  Now show me where in Article 2 the executive branch has that same ability.

Join the NRA.

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Schwartz is a gun rights activist and the head of the Second Amendment Caucus of the Republican Party of San Diego County.



Comments 18

  1. Well, you can write anything you want, but the reality is the Supreme Court (even in its recent rulings) has never defined gun rights in the 2nd amendment as broadly as you have here.

  2. The Supreme Court hasn’t ruled on a number of subjects. What does this matter?

    Up until about 30 years ago when anti-gun people started changing definitions and meanings, there really wasn’t much of a dispute at all on the Second Amendment. The meaning is and was clear. But to advance political agendas and personal biases, meanings and definitions started to change. So the Supreme Court had to get involved. And it sounds like they will again to further define the specifics of “bear” thanks to a horrible dishonest San Diego sheriff who only issues concealed weapon permits to friends and donors.

    Your implication is that the Supreme Court has ruled on the entirety of the Second Amendment along with everything it affects. You know that you are not being honest there, Bill. That is not true. Nor does what they have ruled on make anything I said untrue.

    1939 in USA vs. Miller the Supreme Court made short barrel shotguns illegal because they are not “ordinary military equipment”. People were shortening shotguns so they could fit under their trench coat so they could commit crime. Because this is not a normal military weapon, the length of a shotgun barrel could be regulated. Since an AR style rifle or semi-automatic rifles with detachable magazines are “ordinary military equipment” then, Bill, that would stand to reason that they are protected by the Second Amendment.

    The Heller vs. DC case in 2008 stated by all 9 justices (even in the dissenting views) that the Second Amendment is in fact an individual right. And then a couple years later in MacDonald vs. Chicago they ruled that this right of the people could not be infringed by state governments.

    I would love to hear some kind of substantive rebuttal, but before you do, you may want to read the arguments from Miller, Heller, and MacDonald. Oh, and the Constitution. So yes, I can write anything I want and I choose to write the facts.

  3. @ Bill…. I’m curious to know what your interpretation of the 2nd amendment is. I think Mike had an excellent interpretation. Let’s not just be vague and critical. Do you have a well-constructed thought on the purpose of the 2nd Amendment which was established by our forefathers who were subject to persecution and tyranny by a government looking to control them? An armed nation has citizens, a disarmed nation has subjects. Mike hit the nail on the head. The 2nd Amendment has nothing to do with hunting, shooting sports and home defense. It was integrated into the constitution for the sole purpose of the citizens of our nation to defend itself from a tyrannical government. It gives the people the power to overthrow and reestablish a functioning government. Our forefathers could care less about hunting, shooting sports and home defense; they were worried about an out of control government. Why do we need the Supreme Court to tell us what the definition of the 2nd Amendment is? Are you saying you want the government to define it for you? Do you want our government to also define the appropriate amount of children you can have, how many cars you’re allowed to own and where you’re allowed to live? The constitution is the rule book on how our government should function. The 2nd Amendment guarantees the Bill of Rights. As soon as the 2nd Amendment is gone you can kiss your freedom of speech and the rest of the Bill of Rights goodbye.

  4. I would give you semi-automatic rifles and 30 round detachable magazines and that is probably where I would draw the line.

    That is about the armament of the average U.S. Marine minus all the weaponry that is assigned to squads or fireteams as opposed to individuals M2 Browning .50 cal, etc.

    One issue I have is that there is no well regulated militia unless you consider our reserves and national guard as serving that function, and that is a fair thing to say but my problem is this, people in the military, police force tend to learn a respect for the weapon via training, they get backround checks, their weapons are serialized and registered and they have psychological checks.

    I have no problem with have universal background checks as a requirement to own firearms.

    I have no problem with requiring a base amount of training as a requirement to own firearms.

    I have no problem with requiring a psychological evaluation as a requirement to own firearms.

    I have no problem with requiring registration of the weapon much like you would a vehicle.

    I just think it is good public policy to not allow untrained, psychologically unbalanced, felonious individuals to own firearms, that makes sense to me.

    I mean the alternative, short of constitutional amendment would be that we take the 2nd amendment literally and require enlistment in a well regulated militia, I think I would even be ok with that.

    Of course I would forgo most of the conversation about gun regulation if it meant we could address the real issue behind these tragedies: the state of mental health policy in America.

  5. “Well, you can write anything you want, but the reality is the Supreme Court (even in its recent rulings) has never defined gun rights in the 2nd amendment as broadly as you have here”

    They also haven’t defined the 3rd Amendment either but I’m pretty sure that “no soldier shall shall be quartered” means the local National Guard unit can’t set up camp on my backyard… even if I have a pretty big backyard.

    Shall not means shall not, Bill until you amend or repeal the Second Amendment.

  6. Will, the structure of the sentence would not require serving in a militia to have the right to keep and bear arms. The right belongs to “the people” and by the definition of “militia” it is the people (civilians) who make up the militia when the need arises.

    The National Guard, reserves, and our outstandingly professional military are groups I have tremendous respect and admiration for, but logically speaking, they all report to our government so they cannot be considered a check against the government.

  7. Another way to put it, Will…let’s say the National Guard is the militia. That doesn’t change the right of the people (not the right of the militia) to keep and bear arms. In order to have a well regulated militia, Americans want citizens armed. And the arms of the militia is reasonably and generally considered an AR style rifle with a 30 round magazine (or similar).

    If Americans have decided they no longer want this…change the amendment rather than just pretend it means something else.

  8. “The right belongs to “the people” and by the definition of “militia” it is the people (civilians) who make up the militia when the need arises.”

    The 9th amendment addresses what Bill and Will consider to be an ambiguity. The comma in the phrase defines the sentence as two separate thoughts.

    Again, I’ll echo Mr. Schwartz; this CAN be changed if you have the will. Simply amend the constitution.

  9. So in short: background checks, psychological examination, training, and registration are all unacceptable to you?

  10. I don’t see it as an ambiguity. While I agree the second clause of this statement is relatively clear, it is the reason to include the first clause that gives me a clue to their intent.

    Why not write: “The right of the people to keep and bear arms shall not be infringed.”

    If you read the first ten amendments, or the bill of rights, the Second Amendment is clearly different in that it has that explanatory first clause. Clearly there is a reason for that.

  11. The goal of gun opponents is to make it illegal to own guns — but that likely won’t fly either legally or politically.

    So I expect them to just make gun ownership just too expensive and too much trouble. Requiring gun training and “refresher” courses (government courses with “user fees” cranked up to the max), weapons and ammo taxes, annual people and gun registraton/permits, psy evals and public disclosure of gun owners are all targeted at making guns available only to the rich.

    BTW, note the latest NY law limiting magazines to 7 rounds (which, of course, violates the 2nd Amendment and hopefully will be overturned after a court battle — but don’t count on it).

    Many people have forgotten that the federal Marijuana prohibition law of the 1930’s was NOT a prohibition law. It was TAX law that has the same effect of prohibition — and that was intentional.

    Expect similar tactics involving guns from our rulers in DC and Sacramento.10

  12. Will, I didn’t say anything about background checks, psychological examination, training, and registration. Please stay factual and honest without putting words in my mouth.

    You are right on the money regarding the preamble. It adds meaning. And as I explained, the word militia is the reason people have the right to own semi-automatic rifles with detachable 30 round magazines.

    If they wanted that right to only apply while serving in a militia they would have stated it that way and left out “the people”.

    If they wanted it to be a vague protection of all arms, they would have left out the word militia.

  13. Actually I “mispoke” when I said that only the rich will have (magazine-fed) firearms. There are FOUR classes of people who will have such firearms at home.

    1. The rich who want ’em and will put up with the hassle.

    2. Government employees in public safety or semi-public safety jobs (an ever-expanding category). They can keep their weapons at home. And, of course, politicians.

    3 Criminals who have no intention of ever registering their guns (weapons which number in the millions) — for them, crime is much safer when the criminal is armed and the victim is not.

    4. Law abiding citizens who will violate this edict — hiding their firearms and not going through the legal process (they’ll “lose” their registered weapons).

    This last category is of particuar interest — it gives government HUGE latitude to prosecute (well, persecute) right wing firearm owners and activists — the ones that have spoken out. If you’ve ever written a blog item or letter to the editor defending gun rights — or been a member of the NRA — and you don’t surrender your semi-automatics, they’ll likely be coming after you.

    The ATF could grow into a giant domestic spying agency, concentrating on the safe miscreants who seldom will fight if they are arrested. Prosecutorial discretion will give govt the option to give a pass to favored folks while throwing the book at opponents.

    Is this the America we want? For too many, the answer is “yes!”

  14. Will, let’s keep in mind that a standing Army isn’t authorized for more than two years (Art 1, Sec 8). That might be the reason we have an annual National Defense Authorization Act. The Founders abhorred the idea of a standing (READ: professional) army. And while that same section authorizes Congress to organize, arm, and discipline “The Militia” (READ: citizen army), the selection and appointment of its officers is delegated to the States.

    The preamble to the Second Amendment almost BEGS that people be armed (rather than “permitting an armed populace”.) While both Madison and Hamilton (in Fed 26 and 45 respectively) argue for a “regulated militia” (which is read as trained and supplied), both, including the notoriously statist Hamilton recognize that the citizens’ right to bear arms is not only inviolable, it is necessary to the defense of a free nation. (again in Fed 26 and 45).

    Interestingly enough, Madison and Hamilton brag about forming a government which “fears an armed citizenry”. I don’t recall Jay writing that (although I may be wrong).

    Again, this can all be changed through an amendment; we’ve done it 27 times

  15. In a comment above, a reader posted what was purported to be Charley Reese’s final column. Although much of what was posted was indeed from Mr. Reese’s final piece, the rest of it was internet lore. Here is some additional info.

  16. The political dynamic in this country has changed to elected officials reacting to the knee jerk emotional wants of the voter.

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