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Are Gun Control Advocates Going About It All Wrong?

February 14, 2015

Most interpret the Second Amendment on what it says, not on the grounds of what it does not say.

The Second Amendment of the United States Constitution, ratified as part of the Bill of Rights on December 15, 1791, the Bill of Rights, 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.”

According to Chuck Dougherty, The Minutemen, the National Guard and the Private Militia Movement: Will the Real Militia Please Stand Up? , 28 John Marshall Law Review 959, 962-970 (Summer 1995), “The colonists (arriving in America during the seventeenth century) drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms.”

Eighteenth-century thinking viewed Militia as that comprised of all able-bodied civilians eligible by law for military service to supplement a regular army in an emergency. The individual right to bear arms was legalized, defined and reinforced by the Militia Acts of 1792 and 1795.

Congress passed the Militia Act of 1795 before the Militia Act of 1792 expired, which was to remain in force, during the term of two years, and to the end of the next session of Congress. The Act of 1795 mirrored the provisions of the 1792 and provided federal standards for the organization of the Militia. This Militia Act was in turn amended by the Militia Act of 1862, which allowed African-Americans to serve in the militias of the United States. It was superseded by the Militia Act of 1903, which established the United States National Guard as the chief body of organized military reserves in the United States.

The federal standards enacted by the Act of 1795 stipulated: “Each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…..”

Scholarly commentaries and Supreme Court decisions on the meaning of “well regulated militia,” “the right of the People” and “keep and bear arms” began soon after approval of the Bill of Rights with the 1803 publication Sir William Blackstone‘s Commentaries on the Laws of England by constitutional theorist St. George Tucker and the 1820 Supreme Court case of Houston v. Moore.

The founding fathers interpretation of the right to bear arms granted to U.S. male citizens between the ages eighteen and forty-five therefore included:

  • Felons,
  • Prison Inmates,
  • Sexual Predators,
  • Mentally Insane, and
  • Terrorists.

Women and those of each gender under 18 and over 45 were expressly prohibited from bearing arms.

In closing, gun control advocates should not call for limitations on the right to bear arms rather they should protest for inclusion of those who present a danger to society on the grounds that the founding fathers did not explicitly exclude these groups from the Second Amendment. Women, it looks like the Amendment is not in your favor in owning guns.

Postscript: The author at 65 is an avid believer of strict gun control measures, holds a concealed handgun license and trained in the art of handling and discharging weapons by the NRA since 12-years of age.

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