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In 2008 the Supreme Court established gun ownership as a personal right in their Heller vs DC decision.
The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, 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 were 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 people. 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 “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with 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.
This was a completely new and novel interpretation of the 2nd Amendment where its prefacing clause “A well regulated Militia, being necessary to the security of a free State,” is rendered irrelevant and moot. This was not the intention or the interpretation of the founders. This is not how the SCOTUS had determined what the 2nd Amendment meant previously. That is a radical re-interpretation.
The Militia is the entire point of the 2nd Amendment. It’s why the Amendment exists. It’s not about hunting, it’s not about self-protection, it’s not about anything other than protecting the nation from foreign attack and domestic rebellion.
Scholars of the 16th, 17th and 18th Centuries can trace the origins of the idea of a “Militia” going back to Queen Elizabeth I who instituted a requirement for individuals of all classes to “take part to defend the realm.”
You can find similar origins in the writings of Machiavelli: “Soldiering should be the responsibility of all citizens, but the profession of none,” and that “military service should merge with the rights and responsibilities of citizenship, there should never be any soldier who made war his only occupation.” He also wrote that “Tyranny only happens ‘when citizens allowed professional soldiers, unmoved by a sense of the common good, to subvert military power of the state to their own self-interest.”
Following Machiavelli in the article “An Armed Community: The Origin and Meaning of the Right to Bear arms” Lawrence Delbert Cress wrote “Citizens bore arms in the defense of the state, motivated by a commitment to the common good and officered by the nation’s most respected individuals.” He also wrote that the “2nd Amendment assured ‘the people’ through the agency of a ‘well-regulated militia’ a role in both the external and internal security of the nation.”
The Second Amendment was written within this context. The entire point of “keeping and bearing arms” was intended to be in support of a “well-regulated militia” intended to defend the “a free state” — not your backyard.
In America, President Washington signed the First Militia Act which drafted every able-bodied (white) man into the Militia.
The Militia Act of 1792 allowed the President to temporarily take control of state militias in times of crises. This was later expanded in 1795, permanently allowing the President to call out the militia.
Washington then used Militia to put down the violent Whiskey Rebellion - which was a revolt over the taxes which were raised to pay back the costs of the Revolutionary War.
The Whiskey Rebellion (also known as the Whiskey Insurrection) was a violent tax protest in the United States beginning in 1791 and ending in 1794 during the presidency of George Washington. The so-called "whiskey tax" was the first tax imposed on a domestic product by the newly formed federal government. Beer was difficult to transport and spoiled more easily than rum and whiskey. Rum distillation in the United States had been disrupted during the American Revolutionary War, and whiskey distribution and consumption increased afterwards (aggregate production had not surpassed rum by 1791). The "whiskey tax" became law in 1791, and was intended to generate revenue for the war debt incurred during the Revolutionary War.
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President Washington was confronted with what appeared to be an armed insurrection in western Pennsylvania, and he proceeded cautiously while determined to maintain governmental authority. He did not want to alienate public opinion, so he asked his cabinet for written opinions about how to deal with the crisis. The cabinet recommended the use of force, except for Secretary of State Edmund Randolph who urged reconciliation.[88] Washington did both: he sent commissioners to meet with the rebels while raising a militia army.
[…]
Under the authority of the recently passed federal militia law, the state militias were called up by the governors of New Jersey, Maryland, Virginia, and Pennsylvania. The federalized militia force of 12,950 men was a large army by American standards of the time, comparable to Washington's armies during the Revolution.[99]
Washington used his Militia forces to crush the Rebellion. It was to facilitate efforts such as these that the 2nd Amendment was written and intended.
It wasn’t for hunting. It wasn’t for personal protection.
The 2nd Amendment is mentioned multiple times within the Federalist Papers, but at no time is it referred to as an individual right. It is always considered within the context of protecting the nation using the Militia, and that the assignment of officers to this Militia will be performed by the states, rather than the Federal Government.
THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.''
None of this is about a personal right to anything.
Prior to Heller, the Supreme Court had previously ruled on the 2nd Amendment in U.S. v Miller in 1939 where it found there was “no personal right to a firearm”:
An Arkansas federal district court charged Jack Miller and Frank Layton with violating the National Firearms Act of 1934 ("NFA") when they transported a sawed-off double-barrel 12-gauge shotgun in interstate commerce. Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms. The district court agreed and dismissed the case.
The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.
This was the interpretation of the 2nd Amendment that held for the first 219 years of our nation, before Heller. There was no precedent to Heller, and frankly, it makes no sense in this context. If someone doesn’t have a personal right to a saw-off shotgun, how does someone have the right to refuse a trigger lock for a handgun?
The only way that works is if you pretend that the “well-regulated militia” clause doesn’t exist, or that it doesn’t mean anything - which is what Heller did. A personal right to gun ownership doesn’t exist outside the context of a well-regulated militia.
Heller was wrongly decided.
However, separate from Heller a personal right to bear arms could exist within the 9th Amendment since that specifies that not all rights belonging to the people are enumerated in the Constitution.
Amendment IX
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So in truth, there are two rights. The right and responsibility to participate in the militia and use weapons of war to protect the nation under 2A, and a separate right to personal protection presumably under 9A.
A personal handgun, or shotgun would be a weapon for personal protection. A hunting rifle is for hunting. But war weapons, a fully or semi-automatic weapon with high muzzle velocities which is designed and used to fight Wars — should be reserved for use by members of the militia.
Now, the original plan for the nation wasn’t to have a standing army due to the cost. The plan was to establish citizen militias which would be controlled and regulated by the states - but we didn’t follow that plan. We do have a standing Army. Also a Navy and Air Force. Consequently, we don’t have citizen militias regulated by the States.
The closest we have to this plan is the National Guard, which is considered the official state militia.
The National Guard is a militia force organized by each of the 50 states, the U.S. federal capital district, and three of the five populated U.S. territories. Established under Title 10 and Title 32 of the U.S. Code, the state National Guard serves as part of the first-line defense for the United States.
As it stands, fully automatic high-velocity weapons as well as air planes and other weapons of war are shared fully with the National Guard. The argument could be made that the requirements of the 2nd Amendment are already fully and completely met by the existence of the National Guard. They exist to protect the nation from foreign attack and domestic rebellion. Their access to weapons - has not been infringed.
Therefore, without violating the 2nd Amendment, Federal Law controlling and regulating access to personal weapons - outside the National Guard - should be possible.
But instead of calling for a national ban on personally holding war-capable weapons, we could go even one step further and allow access to war weapons within the context of state-established citizen militias, which would be an additional adjunct to the National Guard.
The States could establish the rules and requirements for these citizen militias - and by joining one and maintaining good standing with them, people could indeed retain ownership of War weapons such as the M-16 or AR-15 or other fully automatic capable high-velocity weapons.
I use the term War Weapons rather than Assault Weapons to make a distinction based on the function and usage of the weapon rather than how it looks. It shouldn’t be about whether the weapon “looks scary” it should be about it’s capabilities and the type of damage it does to human flesh. People hit by a bullet from an AR-15 which can penetrate body armor and will suffer from a literal explosion inside their body. This is what they are designed to do. That doesn’t happen with a handgun.
Today, lots of people are running around claiming to be “Militias” with weapons, practicing maneuvers in the woods. But if they aren’t “well-regulated” under the sanction and control of State rules - they aren’t legitimately a “Militia.” They’re just a bunch of cos-players in Camo outfits. Oath Keepers, III Percenters, Patriot Front. They are pretenders. Phonies. They are not equal to the National Guard.
The NRA argues that we shouldn’t blame the weapons, we should blame the people who misuse those weapons. Well, let’s take that to heart. We should manage the people who seek to have access to weapons.
Tough rules for Official Citizen Militia membership can be established and maintained just as they are with the National Guard. A chain of command can be established and this Militia can take on tasks required by their Governors. Background checks could be standardized and uniform. You can be required to Qualify on the weapon before you possess it. A psych evaluation could be included. People with a history PTSD, brain trauma and CTE should be excluded. Anyone who issues a threat, has been red-flagged by law enforcement, their family or a mental health professional as dangerous or severely depressed and suicidal or who commits a crime could have their Militia status pulled and their access to weapons restricted even without a judge.
In my experience as a state contractor, I’ve had the opportunity to review the State databases used for tracking private guards, security companies and plant protection officers who are licensed. The states already have the infrastructure to track these officers, the status of their license and the weapons they a legally qualified to use. Everything needed to do this with a state-regulated militia is already in place, they would just need to clone their existing systems. All of these records would be held by the state, not the Federal government, and would be subject to the full protection of the 4th Amendment requiring probable cause and a warrant to access.
If someone can’t meet or abide by these rules they would need to surrender their war weapons with reasonable compensation. Serious cases may also lose their personal access to all weapons depending on the severity of the risk they present to themselves and to others.
This would be entirely consistent with Second Amendment as written and intended. This could be codified into legislation which would establish the parameters of the 2nd Amendment and also clarify the scope of a personal right to weapons for self-defense and hunting.
We have a national crisis with gun crimes and deaths. If we’re going to approach it in this post Heller environment we need to do so in a strategic manner. If there is now a personal right to possess a weapon, we should acknowledge that (new) right and accommodate it within the law, but it should be isolated from the 2nd Amendment right under a well-regulated militia.
If we’re going to reduce gun deaths, we need to first look at where the biggest problem exists and frankly it’s not with mass shootings involving an AR-15 in a school or a church. The largest problem with gun deaths in the nation is with suicides.
According to the Gun Violence Archive, there were 43,103 gun deaths in 2023. Of those 19,013 were homicides, but 24,090 (56%) were suicides. That includes 646 Mass Shootings and 41 Mass Murders. 300 Children under age 11 were killed. 1,399 Children under age 17 were killed by guns.
Interestingly, defensive uses of a gun where someone used a weapon to prevent a crime only happened 1,237 times. There were more accidental unintentional incidents of shootings - 1,589 - than that.
Again, more people were shot unintentionally than when guns were used to prevent a crime.
Also, most of these gun deaths, particularly the suicides, are happening mostly in the Red States.
A new study published in Journal of the American Medical Association’s Surgery found that firearm deaths are more likely in small rural towns than in major urban cities, adding to research that contradicts common belief that Democratic blue areas have higher incidences of gun-related deaths than do Republican red districts.
Researchers from Children’s Hospital Philadelphia, Columbia University Mailman School of Public Health and the University of California examined two decades of mortality rates and cause-of-death data from the National Center for Health Statistics’ National Vital Statistics System to compile the study.
A Third Way report found that between 2000 and 2020, Trump-voting states had 12% higher murder rates than did Biden-voting cities.
Data shows that in 2020, eight of the ten states with the highest murder rates voted for the Republican presidential nominee in every election in this century.
In the past, Republicans have made crime a major campaign talking point—in October 2022, one quarter of attack ads on Democrats focused on crime, and in the two months leading up to the midterms, Fox aired about 141 crime segments on weekdays, according to the report.
A report published in the New England Journal of Medicine found guns became the leading cause of death for children starting in 2017—motor vehicle-related deaths held the number one spot for 60 years prior.
The JAMA Surgery study also found that gun suicides are more common than gun homicides, with gun suicides accounting for a large increase in gun deaths in recent years.
It should be people in the Rural Red States who should be most energized to make headway on this issue - but sadly there are not. They have no idea that they are suffering the most from these open gun policies.
It could be argued that many mass shootings are actually elaborate suicides intended to force police to do the final deed.
The FBI identified 160 active shooter incidents between 2000 and 2013. Among the study results:
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64 (40%) incidents fell within the parameters of the federal definition of “mass killing” (3 or more killed).
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In at least 9 incidents, the shooter first shot and killed a family member(s) in a residence before moving to a more public location to continue shooting.
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The shooter committed suicide in 64 (40%) incidents. 37 before police arrived, 17 after police arrived, and 10 at another location.
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486 people were killed in the 160 incidents and 557 were wounded.
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In at least 15 (9.4%) incidents, family members were targeted resulting in 20 killed and 1 wounded.
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In 16 (10%) incidents, current, former, or estranged wives as well as current or former girlfriends were targeted resulting in 12 killed, 3 wounded and 1 unharmed. In addition 42 others were killed and 28 wounded.
It doesn’t get counted as a “mass shooting” but it’s also true that many of these incidents are caused by spurned and gilted men looking to get revenge on their exes. This sometimes leads them to kill the ex, the exes parents and even their own children with that ex. These men are known as Family Annihilators.
Familicide is defined as one family member who murders other members of their family, commonly taking the lives of all. It is most often used to describe cases where a parent, usually the father, kills his wife and children and then himself. These cases are horrifying acts that can wipe out an entire family, leaving relatives, friends, and colleagues stunned and confused. Often no outward signs were visible to suggest anyone was in danger or that there was a risk of an individual taking such horrific actions. It is a crime that has invoked horror and fascination in equal measures. For those with an interest in why such horrific crimes take place and how an individual can murder their own family, such cases are explored in detail.
Familicide is commonly intertwined with the term ‘family annihilator’ stemming from the act itself, that of family annihilation. Most researchers agree that this act is a form of mass murder due to the multiple victims involved.
If we’re going to effectively address gun violence and implement rational gun control we need to look clearly at the problem from every angle.
I’ve had a MAGA friend of mine argue that there are more guns in America than there are people - which is true - and that obviously not everyone who has a gun is using it to harm someone else - which is also true. Not everyone who owns a gun is dangerous and we shouldn’t treat them as if they are. But, as noted above, it’s also not true that all those guns aren’t being used to "prevent crime” because they aren’t.
And how would you use a gun to prevent 56% of the deaths which are suicides? Would you shoot the suicidal person so they don’t need to shoot themselves?
Suicides. Mass Shootings. Family Annihilators. Domestic Disputes. Street Crimes. Gang Shootings. Accidental discharges. All of these are challenges. All of these need to be addressed. Due to Heller we have limited options at removing and addressing the guns, but we can look at the people who are prone to these behaviors, we can change the laws to sever the ability of these people to access those weapons.
It’s not just the gun, and it’s not just the people - it’s the wrong people having possession of deadly weapons. That’s an issue we can do something about.
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