Isn't gun control unconstitutional?

There are two versions of the text of the Second Amendment, each with slight capitalization and punctuation differences. The Second Amendment, as passed by the House and Senate, 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.[8]

The original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:

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.[9]


is that regulated part meant for the militia part in one of those syntaxes and which one?

15 Answers

  • Anonymous
    1 decade ago
    Favorite Answer

    Yes, obviously.

    Either version makes the same case as "the right of the people to keep and bear Arms" is an independent clause in both.

    In plain 18th century English, "well-regulated" means "very dependable." A thing was said to be well regulated if it could be counted on to function as intended in predictable fashion. A less common but likely alternative was military jargon in which a "well-regulated militia" was a civilian fighting force whose equipment and skill made them a match for "regulars," as professional units were known.

    Arms then commonly held by civilians included all sorts deployed in military force. In fact, state-of-the-art systems were more often found in private hands than in the military. The young U.S. even relied on privately owned warships for its ad hoc Navy.

    In United States v. Miller, The Supreme Court ruled in a manner strongly suggesting their agreement with this view. They offered no direct opinion on the meaning of the 2nd Amendment but upheld the State's ability to ban a particular firearm NOT because the defendant wasn't part of a militia but because the gun in question wasn't a suitable battle-field weapon. (they were wrong about that, but this was indeed their reasoning.)

    We all know there are a lot of gun laws, including outright bans. This indicates nothing about the Constitutional soundness of such laws as a large portion of our professional policy makers are self-described opponents of The Constitution and the citizen-sovereignty it's designed to protect.

  • Anonymous
    1 decade ago

    Saying gun control is unconstitutional is a very broad statement. I would say yes, it is definitely unconstitutional. However, this is not including the criminal penalties for those convicted of a crime where they used a firearm while committing that crime.

    As far as the comma issue goes, this one is the original parchment copy: "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."

    When you look at the original Bill of Rights, that is what you will see. The only little gotcha, is that when it was written commas where used left and right. For the most part the first and third are largely irrelevant.

    It's also largely misread, it's the only amendment that has a prefatory clause. The second comma is much like a semi-colon in a sense, it's two separate but related sentences. The first half is the prefatory sentence. "A well regulated Militia, being necessary to the security of a free State," is basically stating that a properly functioning militia is necessary to the freedom of a state.

    It is also the lead up to the primary means of protecting that freedom which brings us to the operative clause. "the right of the people to keep and bear Arms, shall not be infringed." is the operative clause of the 2nd Amendment. The people, or citizens of the United States, have a right to keep and bear Arms and that right can not be infringed.

    It becomes clearing when you look at the definitions of "well regulated", "Militia", "people", and "Arms." If you follow the works of those great men who wrote the Constitution and the Bill of Rights, the definitions become rather clear.

    "Well regulated" is intended, as it was often used at the time, to mean something along the lines of "properly functioning", "well adjusted" or "well trained."

    "Militia" in it's current and historical definition, does not contain any reference a National Guard, which in fact was not created until the 1900s and is a branch of the standing military. Instead it has historically and currently references any able bodied man (and now woman, through equality). It is not a standing militia, but rather one that could be called upon in times of need. Historically said militia also provided their own supplies, including weapons and ammunition.

    "People" is as simple as the capitalization, or lack of it. In order for it to refer to a collective it would have to be capitalized. Also, reading the founders works paints a very obvious picture that it was intended as an individual right as determined recently by the Supreme Court in District of Columbia v. Heller.

    "Arms" has a few little words before it that help determine the scope of arms covered. When you look at "keep and bear" does a nuclear bomb come to mind? Of course not, despite the fact that the materials required for one are highly regulated in the first place, it'd be impossible to safely store one, much less carry it around without millions of dollars worth of hardware. It is also a very indiscriminate weapon unlike handguns, rifles, shotguns, machine guns, and many types of light artillery which are and can be used very accurately.

    Nuclear weapons aside, as far as "Arms" go, even historically as far back as the founders who wrote the 2nd Amendment, we have been limited to those which can be operated by a single person - with the exception of some artillery pieces (yes, ordinary citizens did, and still do own light artillery).

    That's my answer based on the writings of the people who wrote the 2nd Amendment as well as the definitions and common use of certain words, phrases, and punctuation of the time.

    Edit - I would like to clarify that when I refer to light artillery and machine guns that I am not suggesting that everyone and anyone should be able to get them. While civilians can purchase and own them in many states, they are highly regulated by the BATFE and require registration, a tax, and an incredibly through background check to obtain.

  • Chris
    Lv 6
    1 decade ago

    It is not unconstitutional because the second amendment does not create a right to bear arms. The Constitution creates a number of rights and it preserves others. For example, the right to a jury trial in civil matters is "preserved." This simply means that the right to jury trials will not be abridged beyond the point that it existed in 1789. States may grant more causes of action but they cannot abridge the right.

    In a same vein of thought, the second amendment simply holds that "the right of the People to keep and bear arms shall not be infringed." A reasonable reading of this would suggest that the right of the people to keep and bear arms, as that right existed in 1789, will not be infringed. Here, the federal assurance to a right to bear arms would not extend beyond the right to own muzzle loading rifles. Because gun control regulates weapons which were not foreseeable at the time the constitution was written, it is not something that infringes on the right and is thus not unconstitutional.

  • 1 decade ago

    I'm surprised nobody has mentioned it, but the Supreme Court just ruled on that question this year. They decided that the Second Amendment does apply to the individual right to keep and bear arms, so the state can't ban gun ownership or the ownership of any specific type of arms. However they also ruled that the Second Amendment right is not unlimited. The State can place reasonable restriction on individuals.

    In my opinion, under the Constitution, a law abiding citizen, with no mental disorders, should be able to own any weapon they desire. However, the use of those weapons could be regulated. Just like hunting arms are regulated (i.e. you can't legally use explosive or tracer rounds for deer hunting) the end use of weapons certainly can be regulated.

    However, as a law abiding citizen, only I can determine for myself which arms I need to protect myself and my family. Please tell me, under the logic used by the gun control proponents, why aren't cars restricted to only being able to go 65 mph? You can't legally go any faster, so why have vehicles capable of excessive speed?

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  • Anonymous
    1 decade ago

    This is what our constitution states:

    Amendment 2

    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.

    What constitutes a well regulated militia?

    Since "arms" is not defined, what constitutes arms? Nuclear weapons are "arms". Should we each have the right to keep and bear nuclear arms?

    Since our forefathers were speaking of the arms of their time I think it is reasonable for the government to deny access to weapons of mass destruction. What constitutes weapons of mass destruction?

    I firmly believe we, as a people, have the right to keep and bear arms in any number we chose to do so. I am also aware that there must be a reasonable limit placed on what types of arms we can keep and bear. I am unsure as what the reasonable limit of types of arms should be restricted. I am sure that it not wise to allow your neighbors to keep nuclear weapons stating that it is their constitutional right to do so. Should missiles and rocket launchers be a part of our private arms? I do not know where the line should be drawn. I do know that it is reasonable and prudent that some line be drawn.

  • Anonymous
    1 decade ago

    Banning them would be unconstitutional but regulating what types of guns you can use and how they are used is not. I certainly do not think a person should own a machine gun or a rocket launched grenade but a hand gun or a hunting rifle are OK and are more in line with what the 2nd Amendment was written for. It was not meant for nuts to stockpile bombs, bazookas or other weapons of war but rather the right to bear arms in order to hunt, and protect oneself and family. While it is unconstitutional to ban them it is perfectly OK for Congress to make laws about how they can be used.

  • 1 decade ago

    To many, the language of the amendment appears to grant to the people the absolute right to bear arms. However, the U.S. Supreme Court has held that the amendment merely protects the right of states to form a state militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]).

    State and local firearms laws vary widely. Thirteen states prohibit only the carrying of concealed handguns. At the other end of the spectrum, three Chicago suburbs—Morton Grove, Oak Park, and Evanston—ban handgun ownership outright. Generally, firearms regulations are more restrictive in large metropolitan areas.

    State and local firearms laws and ordinances include outright bans of certain firearms, prohibitions on the alteration of certain firearms, and restrictions on the advertising of guns. State gun-control laws also address the theft of handguns, the inheritance of firearms, the use of firearms as collateral for loans, the possession of firearms by Aliens, the discharge of firearms in public areas, and the alteration of serial numbers or other identifying marks on firearms. States generally base their power to control firearms on the police-power provisions of their constitutions, which grant to the states the right to enact laws for public safety.

  • 1 decade ago

    "The laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity ... will respect the less important and arbitrary ones ... Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." — Thomas Jefferson

    Source(s): Gun Owenr, NRA member
  • Anonymous
    1 decade ago

    Don't you think "well-regulated" is supposed to mean something? It's funny how the gun nuts seem to ignore that part. Simply allowing anybody to carry any kind of weapon he wants, with absolutely no training, rules, standards, supervision, and restrictions doesn't constitute a "militia" even in the relatively loose 18th century sense of the word.

  • Anonymous
    1 decade ago

    No. You know, I think anyone should be allowed to own a musket for self defense. Those were the weapons that the framers of the Constitution were familiar with. A civilian has no need or reason to own an AR-15. People only want to reference the Constitution when it supposedly helps support their argument. It was written over 225 years ago, life is nothing like it was then.

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