Misunderstanding the Second Amendment

There has been a lot of discussion about companies infringing on our Second Amendment rights by restricting open or concealed carry in their businesses. These companies have every right to not allow something into their business. While we don’t agree with them, we must respect their rights as we want them to respect our rights.

Check out this blog post from earlier this year:


From the article:

The amendment operates to forbid the government from “infringing” (tampering, usurping, violating) this intrinsic and inherent right.

What part of the Second Amendment do you find to be the most misunderstood?

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Most misunderstood? The prefatory clause concerning the need for a militia. At least, that is most commonly thrown at me during ‘conversations’ regarding gun ownership/rights.

I find the 2nd Amendment to be one of the clearest, most concise, most easily understood sentences ever to be contained in a legal document. Maybe that’s why it gives so many people trouble. They are expecting ‘legalese’ and convoluted language, and become confused when it isn’t there. Perhaps if the Founders had included some Latin phrases, such as “ius populo”, or “licet teneat arma” they would feel better.

The second most misunderstood aspect is the single word “arms”. I believe that word was used purposely to be broadly inclusive of all types of weapons in order avoid unintentional restrictions, as well as to allow for current and future developments of the technology of weapons. At the time, even as today, there were many people working on creating firearms that could be loaded and fired more quickly and more accurately, or be lighter and more versatile. Hence the Puckle Gun and the Furgeson Rifle, to name only two.

Maybe the 2nd is just to simple for people to accept. Nobody expects that from the government.

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I would have to go with “well regulated” which does not mean “well practiced,organized or controlled” as it does today. In the vernacular of the day it meant “well equipped”.

Cheers,

Craig6

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It also recognizes the people as the milita, the founders recognized it was up to the people to defend their freedom. The actual military is to repel foreign invaders after it’s mobilized. The people are the deterant to foreign invaders because they know they have to fight civilians before the military arrives. Then the people are the defense against domestic threats as well.

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Dawn you make a good point. We must respect their rights if we want ours respected also. I would encourage everyone to review the Supreme Court’s decisions on the 2A and to focus on showing everyone that we are the good people. Time to fight the current battle and move on from battles already fought and won.

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To me, the most misunderstood part is the “Shall not be infringed” part. Seems pretty dang simple to me.

And I mean this to be not infringed on by the government. Of course, while I may not like a company restricting my 2A rights on their property, they do have that right.

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In addition to what others have posted which I agree with, I think one of the biggest misunderstandings about the 2nd Amendment is the reason for it. In line with what @David38 posted, it has nothing to do with hunting or target shooting, it has everything with defense against a Government that has turned against the will of the people that have installed it and not that Government’s military/militia.

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Like JamesR posted, it has nothing to do with hunting or target shooting. The 2A was written for “We the People” not for our government. It’s to keep our government in check, it’s a check and balance.

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Good points…I think the predicate of the entire clause is …being necessary for the security of a free state…the subject is the right of the people to keep and bear arms. We need good spokespeople in TV making the point. The non gun community hears someone say that you dont need 30 rounds to kill a deer…well, they say that is true…they never consider the need to repel a totalitarian government, aka the left.

I think the most misunderstood portions of the 2A is the prefatory clause starting with “A well regulated militia.” It would have been so much simpler had the founding fathers written 2A as “The right of the people to keep and bear Arms, shall not be infringed.” But the country had just become a free state because a citizen army was formed of men able to serve bringing their arms to bear against the British Crown following a “long train of abuses and usurpations” against the colonies.

Our Declaration of Independence, Constitution and Bill of Rights are collectively known as the Charters of Freedom. They stand for the foundation, values and philosophy upon which our nation was founded.

The Declaration of Independence is not technically “the law of the land” in the United States. It is a statement of truths applicable to man and the government.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The founding fathers knew that a government of men could, at any time become destructive and need to be altered or abolished. And they knew the only way for this to be accomplished was for the people to take up arms.
And make no mistake, the colonial militia had arms equal or near equal to the arms held by the British army. Many of these were personally owned and many others were obtained by force by raiding the armories and magazines the British maintained in the colonies.
By its strictest interpretation, the right of the people to bear arms is limitless. For those who say people should not own tanks, attack helicopters or F16s, I would say that 2A says otherwise. Our saving grace is that should a civil war begin, we will likely see a strong split in the military in possessions of these “weapons of war” stand up to defend the Constitution (and our country) against all enemies, foreign and domestic.
The fight is not against Walmart or Kroger. We need to respect their rights, whether we agree or not. We can shop elsewhere. The fight is against a government that becomes destructive of our unalienable rights.

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I understand your point, and appreciate that it is the generally accepted point of view. However, I’d like to offer a different perspective to think about. When you are in a retail establishment, do you feel like you are on private property, or a public space? Companies like Wal-Mart expect and need pubkic traffic to exist, yet they refuse to accept liability and responsibility for their patrons’ safety. Do I really forfeit my rights in that environment? To further add to my argument, how many ‘private’ businesses accept public funding? Wal-Mart accepts tax incentives to build facilities, and takes in large amounts of money from Medicaid, Medicare, WIC, food stamps, etc. Not truly a ‘private’ business conducting private transactions. We are working on a bill in my state legislature to prevent businesses that accept taxpayer funding from restricting taxpayers’ rights.

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Micheal7, You bring up more good points, that we need good spokespeople in TV making the point…The FOX News is doing a good job with Tucker, Hannity and Laura Ingram defending 2A. Tucker & Laura spoke with Colion Noir on their shows recently but we need more spokesmen like Colion. Maybe like Jerry Miculek or Teachers like Hickok45 and Reid Heinrich’s that know their History…Your other point, that the anti-gun never consider the need to repel a totalitarian government. Great point and it makes me laugh when I have watched the YouTube reporters, reporting at anti-gun rallies and the protestors want the AR15, the weapons of war banned and confiscated…Then the reporter asks the protester, “Who do you what to confiscate the AR15’s”, the protestor says; “the Police or the Government and then the reporter asked, Do you trust the government?? Then the protester looks puzzled and don’t know want to say. I just start cracking :joy::joy:up, they just proved the point of 2A.

I love your posts. Keep them coming.

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I understand what you are saying and agree that they are accepting money for the products they sell from the government like food stamps, Medicare/medicaid, and accept tax breaks to bring businesses to an area. But, they are still legally private persons and can make decisions about what can and cannot be done on their property. If you look at the law on traditional public forums, quasi or designated public forums and and nonpublic forums with respect to government property, a privately held business fall more closely in to the category of a nonpublic forum. While it may be open to the public, they can restrict activity as long as the restriction is not unreasonable and is not discriminatory (Civil rights act of 1964 discrimination). If you want to classify them as a government facility, compare them to any federal building. You are not getting in with any weapons unless you are a federal LEO.
And, as a consumer you have the right to choose where you take your business. Property owners are only required to discover hidden dangers and warn of hazardous conditions. There is also the concept of open and obvious which does not even require a warning. Based on media attention, it would be hard to say that a mass murder is a hidden danger and it would probably be considered open and obvious. And since they are considered so common, it would be hard refute this.
Under the law of most states, the only way to pursue a claim for inadequate security is for the specific location to have a history of dangerous activity.
If your state passes such a statute, it has to apply to all rights which means every business will be treated as a public forum. That means the full freedom of speech, right to peaceable assembly and freedom of religion also apply. What happens when protests start happening inside the store because prayer mats are spread over the floor for afternoon prayers and every news stations shows up reporting in the store?
You have a choice, take your business elsewhere.

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I hear what you’re saying @MikeBKY, and as a general rule I like to follow private businesses wishes, however I do make exceptions where it does not make sense for me and under those circumstances operate under don’t ask don’t tell. I consider it the same kind of gray zone as driving 5-9mi over the speed limit, or taking more than 15items through the quick check if all the other lines are full and the express checkout line is empty (although I wouldn’t take a full cart, just not to abuse it).

Don’t ask me if I’m carrying and I won’t tell you that I am. And if you do ask, I’ll tell the truth and if you decide to ban me, that’s fine, but no offense to anyone here, I’m not signing sh!t you can go pound sand and no your cannot take my picture outside of what you already have on the security camera, happy to be polite/respectful to any police officers that decide to show, but again unless they are giving me a ticket/citation, I’m not signing anything.

To @Samuel11 's point, I wonder if companies like CVS that are asking non-at all are opening themselves to more liability (e.g. but for my following CVS’s no weapons policy, I would have been able to defend myself against being attacked in the parking lot and I can only shop at CVS because that’s where my employer’s prescription plan is through).

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@MikeBKY So I would like to ask a legal question (I understand the restrictions of your reply being KY, but think of it in the broader concept of these law firms that offer to “get you money for wearing dual sided Combat Ear Plugs, Mesothelioma, Mesh implants” and the like). Would it be feasible to file a SUBSTANTIAL class action or other type of suit against entities that publicly restrict 2A options when there is an incident? File a lawsuit against the entity for failing to provide protection secondary to restricting an individual’s ability to defend themselves? Interested what the legal eagles have to say. The criminal’s family gets to come after the defender of his own property at 3AM in a civil suit after being adjudicated “self defense”. Turn the tables?

Cheers,

Craig6

I understand the Constitution completely, I have no issue with any companies policy to restrict whatever they want.

What I find most people to misunderstand about the Constitution is that it only protects them from the government. Not person to person or company to employee interactions.

But I think they made a mistake this time. Most Walmart’s are located in rural areas which tend towards conservatives and I kept track of every single store that said they didn’t want me to exercise my right to open carry. Even though I can and am welcome to legally Concealed Carry inside a Wal Mart at least where I live.
But I now go to their competition instead and have sent them certified mail with receipts to show how much money they are losing just from me. I have talked to many others, who have done the same.

I have divested my stock portfolios of any of those companies. There is one and certain way to make a company cave to it’s stupidity. That is by affecting it’s monetary performance. As a former COO of a Fortune 500 company, you live and die by year over year same store performance.

Let’s begin with the title, The Right to Bear Arms. In days of past it was crystal clear.

During WWII after the attack on Pearl Harbor my grandfather and many other men were instructed to get their firearms then directed to assemble and deputized to keep security watch in the city and to protect the water wells in the City of San Fernando in southern CA.

In 92 I experienced law enforcement bugging out and pulling out, during the Rodney King riots and then them being overwhelmed with all other 1st responders after the 94 Northridge earthquake hit.

During the riot there was Martial Law heavily enforced in the city, not so much in the suburbs and the infamous Korean shop owners took to their rooftops with rifles and handguns in the streets to protect themselves and their businesses, after the quake we were on our own as well dealing with looters and lawlessness.

Back to what is written on the 2nd amendment. I define it in two parts. To protect the state the people need to be ready and able, second part is simple the right to arm yourself and keep those arms is not negotiable. If one were to look up infringe in a dictionary you would think it would be crystal clear leaving no room for interpretation or opinion.

It’s how one attempts to define the 2nd amendment by lumping it in context prefaced as a direct relationship towards inferring gun owners need to be a weekend warrior and part of a paramilitary group.

Those commas are there for a reason, so the context of the right to bear arms is emphasizing those bullet points.

In my Grandfather’s day during a time of war, the 2nd amendment was absolutely put into action as written.

In my cases neither scenarios are about a militia to keep a state free from tyranny, little side note ironically in NOLA after Hurricane Katrina there were confiscations at gunpoint/use of force in some instances where the citizens were disarmed.

Back on topic, the last part is plain and simple and direct. The right of the people in these two experiences it was absolutely a right that was well to have and been protected in order to have been able to be exercised.

I appreciate what you are saying and how you handle it. With only a few exceptions, a no gun sign in KY does not hold the force of law and you can only be asked to leave. If you do not leave, you can be arrested. In states where a posting holds the force of law, you would need to be a little more careful as just being there can lead to your arrest. I also agree with you on the issue of signing anything. You do not have to allow them to take your picture but they can take it without your consent. Of course you can cover your face.

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That is a great question @Craig6. And as you said, I can only speak to Kentucky law but the general principles of liability apply in most states. I know that individuals are filing suits following shootings against businesses. In order to file a class action, four prerequisites must be met. These are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. Numerosity means there must be a large number of plaintiffs so that bringing individual claims would Not be practical. In most mass murders this is not the case. Commonality means there are common issues of fact or law. This is probably true. Typicality requires that the claims of each plaintiff must be typical to the entire class. Last is adequacy of representation. This is where things get really problematic.
In a class action, what will usually happen, if successful, is that there will be a pool of money to split between the class members. If I represented someone in that class, i would want their damages to be analyzed individually, not as a class. That is how most mesothelioma cases are pursued, individually and not as a class.

Forgetting about a class action, there are still issues with the liability in a mass murder. We want to hold the criminal responsible. If we are going to start holding the property owner responsible then we might as well hold the gun maker responsible and everyone in the chain that led to the event. There is also the issue of damages. I would not want my client’s damages compared with other claimant’s damages. Is a death worth more or less than an injury? These are hard issues to address.

I am certain there are lawsuits over the Vegas shooting and in Kentucky, Kroger was recently sued for a double homicide because they have no gun restrictions. The claims in each case are the exact opposite. Is the premises owner required to insure the safety of their business invitees? Under the general principles of liability the answer is no in both instances. But, in todays political climate, it is hard to say who is going to prevail.

But, if you can afford the filing fee, you can sue anyone for anything and you don’t even need a good reason.

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