Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons

On February 23, 2018, during a radio interview with Hugh Hewitt, Stanford U. political science professor and President George W. Bush’s secretary of state Condoleezza Rice said:

“I think it is time to have a conversation about what the right to bear arms means in the modern world. I don’t understand why civilians need to have access to military weapons. We wouldn’t say you can go out and buy a tank.”

By “military weapons,” Rice means the semi-automatic AR-15 rifle that confessed Parkland school shooter Nikolas Cruz allegedly used to kill 17 students and teachers on Feb. 14 in Parkland, Florida.

It is astonishing that a political science professor doesn’t seem to know that ten years ago in 2008, the Supreme Court had ruled 5-4 that:

  1. The Second Amendment’s guarantee of the “right to bear arms” pertains to individuals and not, as some insist, to militia.
  2. The Second Amendment’s prefatory clause [a “well regulated Militia, being necessary to the security of a free State“] may include citizens’ right to bear military weapons because today’s military has sophisticated weapons that government didn’t have in the 18th century. To ban individual right to such weapons would effectively render meaningless the prefatory clause’s “well regulated Militia, being necessary to the security of a free State”.

District of Columbia v. Heller, 554 U.S. 570, was the first Supreme Court case to decide whether the Second Amendment protects an individual’s right to keep and bear arms for self-defense. Prior to the Court’s ruling, the Firearms Control Regulations Act of 1975 had restricted District of Columbia residents from owning handguns except for those registered prior to 1975.

But the Court, in District of Columbia v. Heller, struck down the Regulations Act’s ban on handguns as unconstitutional, as well as the Act’s requirement that all firearms — including rifles and shotguns — be kept “unloaded and disassembled or bound by a trigger lock”.

The majority opinion, written by the late Justice Antonin Scalia, is considered an example of constitutional originalism — interpreting the meaning of the U.S. Constitution in accordance with the original intent of our Founders. According to the Court’s ruling:

  1. The Second Amendment protects the individual‘s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (Pg. 2–53 of District of Columbia v. Heller)
  2. The “people” to whom the Second Amendment right is accorded are the same “people” who enjoy First and Fourth Amendment protection. In the words of Justice Scalia: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”
  3. The Court’s interpretation is confirmed by:
    1. Analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. The Second Amendment’s drafting history reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. (Pg. 28–32 of District of Columbia v. Heller)
    2. Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century. (Pg. 32–47)

    But the Supreme Court also ruled that the Second Amendment right, like most rights, is not unlimited:

    (1) The right to bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

    (2) On the matter of “military weapons,” the Supreme Court ruled that:

    “We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U. S. 174] said . . . that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradi­tion of prohibiting the carrying of ‘dangerous and unusual weapons.’ […] It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [a “well regulated Militia, being necessary to the security of a free State”]. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” (pp. 58-59)

    Clearly, SCOTUS’ 2008 ruling understood the 2nd Amendment as a safeguard against a tyrannical government via citizens owning arms to defend themselves. What those arms are depend on the circumstances, specifically, arms technology. In the 18th century, those arms were rifles. But in the 21st century, handguns and rifles are insufficient against the vastly superior armament of  the government’s military. And so, in District of Columbia v. Heller, the Supreme Court left open the possibility of individual right to military-grade weapons as a means to defend against a tyrannical government.

    If we are to go by Condoleezza Rice’s assertion — “I don’t understand why civilians need to have access to military weapons” — we might just as well junk the Second Amendment entirely.

    UPDATE (Feb. 28):

    I just took an online survey, the language of which is skewed in favor of gun control. Please go take it and register your views! Click here.

    ~Eowyn

49 responses to “Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons

  1. Can the PLA really be only 2,500,000 people? In a nation of more than 1,000,000,000 that figure seems very low; I expected it to be 10,000,000.

    Liked by 1 person

  2. 2nd Amendment “arms” meant common individual infantry weapons…

    Liked by 5 people

    • Wow, that photo brings back memories. My recon platoon in Vietnam had one of those, handed down as sort of an honor, which I finally got for no real reason. Word back then was it wasn’t allowed for grunts—I think I heard it was only for tight quarters like hanging in trucks or helicopters—, but nobody ever said anything about confiscating it as far as I remember. Problem was there were only maybe two old banana clips for it. I carried one of these in the field yet there are times I share Gordon Duff’s sentiment in an essay he wrote a few years back. I don’t mean any offense to you, but when some people who’ve never been there start talking the Rambo talk, some of us old timers get the feeling our experience was an illusion or stolen from us by the ever-inflating war stories of basecamp commandos who’re now, probably, your grandpa’s age.

      Liked by 1 person

  3. THANK YOU!!! I’ve been saying this exact same thing for years. The 2nd Amendment was meant to keep the American people on an even playing field should an opposing force try to take over. Back in the day that meant muskets – now it means automatic weapons. The Founding Fathers knew two things very well: 1) a well-armed populace is a safe populace, and 2) you don’t bring a knife to a gunfight.

    Liked by 5 people

  4. This link i think makes it clear what the founders thought about our 2nd amendment and Jefferson states its importance against government tyranny. The FBI and that fake sheriff stood by and let this happen in Florida.
    http://leadershipbygeorge.blogspot.com/2011/12/right-to-bear-arms-government-tyranny.html

    Liked by 4 people

  5. Heller managed to dance around 3 gross misunderstandings about the second amendment. First, the meaning of the words “well regulated”. In the vernacular of the day in which the constitution was written, “well regulated” meant (and there is voluminous forensic editing to support this) well supplied, or well armed. Second, the “militia” being mentioned is us, the ordinary citizenry. Like the minutemen of yore, the framers fully expected, and even compel “We the people” to rise and take up arms against a tyrannical government. Third, and just as important, the amendment states “arms”. It gives neither preference nor description, by design. If the founders expect us the take up arms against a tyrannical government,would it make sense that the government could “legally” use more lethal arms against us than “we” are legally allowed to possess? That is why any restriction on any possession of “arms” by our benevolent government is utter tyranny and unconstitutional. It is up to us to become better citizens.

    Liked by 4 people

  6. Constitution and court rulings don’t mean squat to gun grabbers. They are going to change the world and boycott the NRA. /sarc

    Liked by 4 people

  7. I can’t seem to get this to post on either FB or Twitter. Hmmm.

    Liked by 2 people

  8. This is why you need guns:

    “A violent series of armed robberies have hit the Seattle’s Beacon Hill where three, armed men kicked in doors and held residents hostage while they ransacked the victims’ homes. There have been no arrests.

    The suspects, male Hispanics in their 20s, kicked in doors to the rooms of three roommates, held guns to their heads, and demanded money and drugs.

    In this case, one of the suspects shot the victim with a taser, one probe hitting the man in the jaw, and the other his shoulder.

    “At least once week we have home-invasion robberies,” the officer explained. “We’re routinely catching people and then having to release them … when they’re juveniles.”

    Here’s the kicker, the police response:

    Though the Seattle Police Department does not believe the public is at risk, it’s possible that more cases will be tied to these three suspects.”

    Unbelievable…

    http://mynorthwest.com/910730/violent-home-invasions-seattle/

    Liked by 3 people

    • Being Seattle its surprising they don’t take them out for a drink and get them laid before releasing them with gift certificates and a bottle of Old Granddad.

      Liked by 5 people

  9. No army nor military in the world employs the AR-15. So why is it considered a military weapon?

    Liked by 2 people

    • I’m not sure I understand your question. The ‘AR’ stands for Armalite Rifle. They were the original designer. It has morphed into “assault”, probably because the twinkles think it sounds scary.

      Liked by 3 people

  10. There has never been a government that banned it’s own ARMED FORCES from “Keeping and Bearing” ARMS.
    Find one government in the history of humanity that felt a need to document a “RIGHT” for it’s ARMED FORCES to possess ARMS.
    Oppressive Governments are ALWAYS banning the People’S RIGHTS to arms.
    The claim that the Founding Fathers wrote the 2nd Amendment to give Our ARMED FORCES a “right” to keep and carry ARMS is S-T-U-P-I-D.
    The only reason for the Second Amendment is to clearly spell-out the GOD GIVEN RIGHT of INDIVIDUALS to keep & bear ARMS.
    The only reason for the BILL(list) of RIGHTS was to codify INDIVIDUALS’ GOD GIVEN RIGHTS.
    Has there ever been a government that was not chock full of it’s “rights” up to and including declaring itself to be the Lord God Almighty?! (Rome, Egypt, Israel,etc)
    Does the 1st Amendment mean the GOVERNMENT is allowed to give speeches? Try shutting up any Politician. But THEY would LOVE to shut YOU up, hence the FIRST Amendment.
    Anyone who tells you the 2nd Amendment applies to the Army or State Militia, is telling you they think you are STUPID.
    There has NEVER been a government that felt it had to codify it’s army’s/soldier’s “RIGHT” to “Keep and BEAR ARMS” because there has NEVER been a government that refused to allow It’s own soldiers to KEEP and BEAR ARMS!
    The Second Amendment was given to the People, like all the other rights in the Bill or Rights. This was confirmed by the SCOTUS in the DC vs Heller decision, where they stated that the “People” in the Second Amendment were the same “People” that are mentioned in the First and Fourth Amendment.
    The 2nd Amendment clearly guarantees the “right of the PEOPLE to keep and bear arms”, and certainly not “the Militia”.
    Why would “the Militia”, a type of army manned by citizen-soldiers as opposed to full-time “regulars”, need a constitutional amendment to guarantee they have the right “to keep and bear arms”?
    Is there any specific statement anywhere in the Constitution that the army Congress is empowered to raise has the “right to keep and bear arms”?

    Of course not. …………. That is assumed.
    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” — Thomas Jefferson

    It is implicit in the nature of all kinds of armies —- be they militia or regulars, volunteer, conscripted, or mercenary — to be armed.
    They are all “armed forces”.
    They all “bear arms”.
    They all carry guns.
    That is what they do.
    It certainly no more requires an amendment to the Constitution to state that “the Militia” has the RKBA , than a specific statement that the army Congress is empowered to raise may be manned by armed troops.

    “The [U.S.] Constitution is a limitation on the government, not on private individuals … it does not prescribe the conduct of private individuals, only the conduct of the government … it is not a charter for government power, but a charter of the citizen’s protection against the government.” Ayn Rand

    Liked by 2 people

    • Well, Marvin, in a country that truly did the bidding of those in charge, namely “US”, they would welcome the help. Why would a public serpent (I mean servant), worry about an armed citizenry? Even monarchs had them.

      They must be worried about something. I wonder what that could be?

      Liked by 3 people

  11. “prohibitions on the possession of firearms by felons and the mentally ill”–

    The problem is that a felony that follows you for your whole life is unconstitutional. If you are out of prison, you are a free individual with your rights reinstated. Not to mention all of the nonviolent felonies encoded into law now.

    And prohibiting the ” mentally-ill” is troublesome due to the fact of what is determined to be mental illness and who determines it. Personally, I choose dangerous freedom over peaceful slavery.

    It is about personal responsibility; if you know that lunatics and criminals may have guns, then you have guns yourself, for defense. It’s that simple really.

    Liked by 2 people

    • Kevin J Lankford

      It is a favored refrain of anti-second amendment nuts arrogant government buffoons and elitist pundits, to quote the phrase “no right is absolute”, the real source of which I have no idea. I also have no idea just how “Shall Not Be Infringed” can be expressed in a more ‘absolute’ form.

      It is a real injustice as you stated, and I have addressed more times than I can remember, that a person can be permanently deprived of a civil right. It stems (I believe) from the ignorance of, or avoidance of the “Bill of Attainder” clause found in section 9 paragraph 3 of our Constitution.

      The “Bill of Attainder” clause is actually a reinforcement of the absolute nature of our second amendment right, and every civil right by prohibiting government from depriving any civil right as a punishment for any crime. But instead citizen are denied the exercise of their right to ‘arms’ for the most meager violation, many totally unconnected to firearms.

      As for the mentally ill, we would hope that they are under some form of responsible care.

      Liked by 1 person

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  14. Condoleezza Rice keeps popping up in ” gun blabber territory.” She is just another over-educated NWO toady, as are most of those connected to the Bush Crime Family. Condy, dear, the Second Amendment is not about NEEDS; it is about RIGHTS. It’s not about hunting or protecting ourselves or property from thieves, though guns do come in handy in those situations. The globalist elites are coming down to the wire in their agenda; their last obstacle is our gun ownership. Things are going to get nasty.

    Liked by 2 people

    • Yes, just think. If they can do an end run around the language of the Second Amendment, nothing of the Constitution remains safe. “Shall not be infringed” is not ambiguous.

      They do not have the right to amend the Amendment. The Government’s authorities are enumerated in the Constitution. They are assumed to have no other powers than those enumerated. It is the opposite of the citizenry. It is a way to deliberately restrict their overreach.

      They all took an oath to abide by the Constitution. Obviously they are in violation of their oaths. They should be removed for that reason alone.

      Liked by 1 person

  15. Goodly and Godly article. A citizens’ militia bears the same weapons as a standing army, right up to tanks. The 2nd Amendment says so.

    Liked by 1 person

  16. I agree with Lou – I’ve posted from time to time about the 2A, that it’s my right to own my private aircraft carrier, if I so desire; that the 2A is designed to ensure citizens can meet & respond in kind to any “hostile takeover” attempt of this country.

    Even the military (as originally envisioned) was supposed to shrink dramatically in times of peace. Which we officially haven’t had for decades, we’ve been in some sort of state of war or emergency for a long time.

    Liked by 1 person

  17. Once upon a time my Calilfornian son was engaged to a girl from Mexico City who had a green card to work here. We met several times over dinner in CA with her father and step-mother. They were as well-educated as we, very congenial people. We enjoyed them (as well as the grandmother and aunt). BUT–at one point, the gun discussion came up. The Mexican father passionately proclaimed over our wine one time that NO ONE IN MEXICO could own a weapon…and he supported that ONLY THE MILITARY AND THE GOVERNMENT should carry/own guns…and I, lifting my wine, replied,” And, that’s why YOU fear your government…even if they are colossal failures at serving you…..and in America..for better or worse, MY GOVERNMENT FEARS ME—and that’s how I, and our founders, want it to be.”

    My son never married this girl.

    Liked by 2 people

  18. if the AR15 is an “assault weapon”…..why does NO COUNTRY use it in war??????????

    Liked by 2 people

  19. “Imagine if citizens actually owned TANKS!” Gasp! I actually think that the government should not be allowed ANY weapon that the rest of us aren’t allowed to have. Or, the flipside: individuals should be able to own ANY weapon the government has.

    (I’m very popular at parties, as you might imagine. 😜)

    Liked by 2 people

    • Ah, you are BRILLIANT as usual. I completely agree. I don’t have adequate storage for nukes so I guess those will have to go.

      A good government is one that is afraid of its constituents.

      Liked by 1 person

  20. I think that the 2nd amendment actually supports personal weapons, not crew served weapons. It might just be me, but I think that an individual should be able to own and possess a fully automatic machine gun, but I draw the line when you talk about owning a howitzer, or an FA 18 with rockets and cannons, or nuclear missiles. An individual perhaps should also be able to own grenades and claymores, I never gave it any thought, but when you get into weapons that are designed for mass casualties, now we might have to discuss things before you can convince me.

    Liked by 1 person

    • My point being that it ISN’T up to ME to convince someone. I have permission. If they want to change that, it’s up to THEM to sell me the idea. I don’t think they have the authority to do that.

      Liked by 2 people

      • I also remember that the constitution is meant not to give the people permission, but as a limit of what the government is able to do. I don’t like background checks for just that reason. I am in effect being forced to prove myself not guilty of something before being allowed to exercise my rights, that have been given to me by God, and not the government. More acceptable would be that those that are considered not allowed to possess firearms, such as mentally ill, should be adjudicated so by a court with the chance to disprove the allegations, and then, if so ruled, they have their name entered into a data base that stops them from purchase. Not a prove your innocence, but rather a government, you show them to be guilty type of thing.

        Liked by 2 people

        • Yes, we already have GOD-GIVEN rights. The “government”, on the other hand, when acting as a government, only get their “POWERS” by what is enumerated in The Constitution. They don’t have any powers that aren’t enumerated.

          Liked by 2 people

  21. Amen. Keep your hands off our guns.

    Liked by 1 person

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  23. I absolutely believe in an individuals right to own firearms, the confusion is, at what level of protection is sufficient or to be considered legal, or an “overkill”, as has been demonstrated with school & concert massacres. What are hand grenades classified as, restricting gun ownership will only result in other methods of mass murders, I’m expecting school rooms to be targeted by explosives as the alternative to the use of assault weapons!

    Liked by 1 person

  24. What surprises me in the first place is the Supreme Court of the United States over stepping their authority because their job is not to question or determine what the Constitution says but rather to rule if a LAW is un-constitutional. That being said though I am pleased at their decision because it’s the correct decision. I hope and pray that we get more Justices like the Honorable Scalia.

    Liked by 1 person

    • Interpreting the Constitution, aka judicial review, is one of SCOTUS’s powers although it is not mentioned in the Constitution’s Article 3. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: “A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

      Like

  25. Hamilton was a Federalist that believed in a strong central government that could make things up as needed to rule.
    Aaron Burr should have been in his face earlier. Much earlier

    Like

  26. For pigpen:
    Tanks, fighter air craft, and all that any National Guard unit has would be all right, if in the control of a Governor of a Sovereign State.
    Such has not been possible after 1865 when A. Lincoln abrogated the Constitution in 1861 and invaded the Sovereign State of Virginia in an undeclared war..

    Liked by 1 person

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  30. In his book, Six Amendments: How and Why We Should Change the Constitution, (2014), former Supreme Court Associate Justice John Paul Stevens, who wrote the dissenting opinion in the Supreme Court’s Citizens United case, proposes to change the Second Amendment to read:

    A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.

    The addition of these five words essentially allows for the criminalization and disarming of homeowners and law-abiding citizens.

    Stevens, appointed by Gerald Ford, would also change the First Amendment to limit political speech, change the Eighth Amendment to forbid the death penalty, and change the Tenth and Eleventh Amendments to end sovereign immunity for the states and absolute immunity to state and local elected officials when they don’t follow federal laws.

    He should never have been appointed, and of course by a Republican, just like Roberts. We need Kennedy and Ginsburg to retire so Trump can appoint two pro-life, conservative judges to the court.

    Liked by 1 person

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