I am sad about this set of facts about the ACLUs position. Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
I have long been an ACLU member and donor. Despite my differences of opinion on some matters, I have been grateful that they have fought in the name of rights in a great many cases. I do wish they would take a broader view on their mandate on Civil Liberties, today and tomorrow.
Ironically, Hamilton was both wrong and right here. He was right that by enumerating rights in the BoR that it has empowered the government to view those rights as the only ones that are untouchable (and not even that.) However, he was wrong that the COTUS would stand on its own to protect individual rights due to its strict limiting of the government's ability to infringe those natural rights -- which it very much has done.
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
Later in life, even:
“The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.” – Thomas Jefferson, letter to John Cartwright, 5 June 1824
> Longer than the ACLU has held its opinion, the Constitution and the writings of the Founders, both before and after its ratification, ascribe all of the rights in the Bill of Rights to individuals, including the 2nd Amendment specifically.
This isn't even remotely true. The 10th Amendment, for example, explicitly concerns the rights of the states and not the individuals within them.
The phrase "well-regulated militia" should be a giveaway to you: individual human beings are singular, not plural, and the concept of a "well-regulated individual" doesn't make much sense either in the language of the framers. We've so profoundly distorted the original language as to effectively erase "militia" entirely[1].
No, if you read the antifederalist papers, you will find the text from which the bill of rights originated which more clearly show that it is an individual right.
> 7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people of any of them, unless for crimes committed, or real danger of public injury from individuals;...
* The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18,1787)
Both the first and forth amendments also use the wording "the people" to refer to an individual right.
Moreover, the militia is and was intended to be every able bodied male.
> The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
> (b) The classes of the militia are—
> (1) the organized militia, which consists of the National Guard and the Naval Militia; and
> (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
There's a reason the anti-federalist papers are not part of our legal and cultural canon: the anti-federalists lost. Their sole victory (a good one!) in our Federal government is the Bill of Rights, and even that was Pyrrhic in nature.
> Both the first and forth amendments also use the wording "the people" to refer to an individual right.
That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person." It's a particular kind of institution, one that the 2A recognizes must be well-regulated. That's why 10 USC isn't the "gotcha" that armchair scholars think it is: the general body of the population is the opposite of a well-regulated militia, even if they are perfectly eligible for service in either a militia or the armed forces.
And note: I'm not claiming that "well-regulated" means that the framers meant "full of regulation." The framers were clasically educated: their understanding of the world "regulate" is the non-personal version of "moderation," meaning something closer to "striking a balance." There is nothing particularly balanced about either a complete ban on arms (you will note that no liberal democracy on Earth actually does this) or our current clown show of private militias showing up to protests strapped with assault rifles.
Sure they lost, but we can look to their writings for aid in our understanding of the meaning. I'm not saying that the quote is binding in itself.
> That's because "people" is the plural of "person." "Militia," on the other hand, is not the plural of "person."
This is a weird take. There is no indication or grammatical reason that "people" and "militia" are convertible.
If you read the various state versions of the 2A many are more clear than the federal that it applies to individuals. There is a state court case
https://en.m.wikipedia.org/wiki/Nunn_v._Georgia
Also the infamous Dread Scott decision mentions it:
> It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
10 USC was not supposed to be a gotcha. It is showing that just as at the time of the founding, all citizens were expected to keep and bear arms, and thus also know how to use them so still does federal law reflect that.
Quick note: people are not protesting with "assault rifles" because one is defined as select fire and they are very expensive to acquire. Although I do wish that this was not the case.
I have long been an ACLU member and donor. Despite my differences of opinion on some matters, I have been grateful that they have fought in the name of rights in a great many cases. I do wish they would take a broader view on their mandate on Civil Liberties, today and tomorrow.