What the United States Constitution Really Says about the Right to Bear Arms

There’s a lot of misinformation floating around about the Second Amendment to the United States Constitution. Lots of people arguing that it creates an individual right to carry concealed weapons for personal protection, or just for the fun of intimidating others. Sorry, that’s not what the Constitution says.

Here is what the United States Constitution actually does say about Militias and the corresponding right to bear arms:

Article I - The Legislative Branch, Section 8 - Powers of Congress

“The Congress shall have Power . . .

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

“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;
. . .
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Article II - The Executive Branch, Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; . . . .”

The Second Amendment then provides:

“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.”

The Constitutional right to keep and bear Arms is to empower the People to form a well regulated Militia, when called upon to do so. The Militia has a very limited purpose: “[when called upon by Congress] to execute the Laws of the Union, suppress Insurrections and repel Invasions.” That’s it! The right to keep and bear arms is in service of the People’s ability to execute the laws of the Union, suppress insurrection and repel invasion. Nothing more. Carrying weapons for personal protection is not part of the Second Amendment. For that matter, neither is hunting.

Further, the President is the commander in chief of the militia. So, when you are “exercising your Second Amendment right” to carry weapons, you are subject to the President’s authority, and to Congress’s regulation.

Otherwise, you are an insurrectionist. That’s what the United States Constitution says.

Reagan Destroyed the Supreme Court

With the announcement of the retirement of Supreme Court Justice John Paul Stevens, a lot of discussion is going on as to possible successors. This discussion demonstrates a point anyone who practices law has long known, Ronald Reagan destroyed the Supreme Court.

Justice Stevens is a lot of things. A Republican appointee (Ford), a moderate who found himself on the liberal edge as the court veered sharply to the corporate right, but above all, he was (and is) exceptionally bright and keenly insightful. As Adam Litpak said today in the New York Times, he was "the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court."

In selecting Stevens, President Ford said all he wanted was "the finest legal mind I could find." Stevens lived up to that quest.

Then came the "Reagan Revolution" and its war on the intellect. Reagan sought not the best mind, but the mind most likely to abdicate responsibility to corporate interests. He got precisely what he wished for in Scalia and Kennedy. Bush, Sr. continued the drive to replace intellect with ideology through his choice of Thomas (Souter's ultimate direction was not what Bush had expected).

As Jonathan Alter recently attested, for all his fireworks, Scalia cannot hold a candle to Steven's intellect. The proof is in the consistency of argument. Stevens' decisions demonstrate a consistent approach to the law that has little to do with the political identity of the parties involved. Scalia is the opposite - always finding a way, no matter how intellectually dishonest, to rule in favor of conservative parties, even if this requires contradicting his own prior work.

While the republicans drove through ideological purists, Clinton waffled, and appointed middle-of-the-roaders who wouldn't ruffle any feathers. Those who claim Breyer or Ginsburg are "liberal" don't know the meaning of the term.

Bush Jr. upped the ante further, appointing Roberts and Alito, both of whom even Scalia has described as intellectually dishonest. Ouch!

There was a time when the high court was peopled by towering intellects. From Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo through Felix Frankfurter, William O. Douglas, William Brennan, Thurgood Marshall, Earl Warren, Robert Jackson, Hugo Black, Harry Blackmun, and, the last holdout, John Paul Stevens.

Now, some thirty years after the conservative movement decided to punish the sin of intelligence, we have the likes of Thomas, Alito and Roberts.

It is not even clear that President Obama could succeed in naming an intellectual giant to the Court. I hope he tries anyway.