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Sunday, June 27, 2010

The Second Amendment Saga

Of all the amendments to the Constitution perhaps none has created as much controversy as the 2nd Amendment. The "right to keep and bear arms" has caused both grief and comfort for generations of Americans who have fiercely debated the meaning behind these 26 simple words:

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.

What exactly does it mean? What were the Founding Fathers suggesting? Does it even apply to the 21st century? What is a "militia" and how is it to be "well regulated"? Do all guns qualify as "Arms"? And if not, where do we draw the line?

These are just a few of the many questions that have hovered around the Second Amendment for the past 200 years, and depending on who you ask there are different answers to each of these aforementioned questions. So how are we to make sense of this issue? How can we separate the political/pop-culture jargon from the actual substance? Well, let's look at a recent Supreme Court decision, which I believe helps to illustrate the division that exists between pro and anti-gun advocates, and how they both appeal to history to defend their respective positions.

As you all know by now (unless you have been hiding under a rock) the U.S. Supreme Court passed a very important ruling just a couple of years ago that dealt with one of the basic questions surrounding the 2nd Amendment: do average citizens have a right to own a gun, in their own home, for the purposes of protection? In the case, District of Columbia v. Heller, the court ruled 5-4 that there is a constitutional right to keep a loaded handgun in your personal residence for self-defense. This ruling overturned the D.C. handgun ban, which was one of the strictest gun-control law in our nation's history.

Justice Antonin Scalia, who wrote for the majority opinion, stated that the justices "are aware of the problem of handgun violence in this country...But the enshrinement of constitutional rights necessarily takes certain policy choices off the table...It is not the role of this court to pronounce the Second Amendment extinct."

In his dissenting opinion, Justice John Paul Stevens stated that the Second Amendment applies only to a militia, and that the Constitution’s framers were afraid that the new federal government would disarm the populace, as the British had tried to do. Thus, the current understanding of the Second Amendment needs a modern interpretation and revision:

The Second Amendment was not written to grant citizens a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Prohibitions on carrying concealed weapons, and prohibitions on dangerous and unusual weapons is well within the scope of this court's power to enforce and poses no attack on the Constitution.

Ok, fair is fair. Justice Stevens is right when he mentions that the United States no longer has a need for a militia...at least not in the way our founders envisioned. But does that close the door on the Second Amendment? Do we as citizens have no right to bear arms simply because there is no need for a militia in the 21st century?

I say no. Citizens still have a right to keep and bear arms and here's why:

Like every other anti-gun advocate, Justice Stevens tries to argue that the right to keep in bear arms in an archaic law that was established by our founders to ensure that their new colonies had a well armed militia. And now that we have no need for a militia, this law is obviously outdated. He is wrong. The establishment of the Second Amendment was not done for the exclusive purpose of maintaining a militia.

During the debates of the Constitutional Convention, several key founders (most noticeably James Madison) argued that a Bill of Rights was a necessary component for the new American government, a component that would ensure that certain basic rights would never be infringed upon by a local, state or federal government. And when creating the Second Amendment, men like Madison didn't pull their words out of thin air. They relied on other important documents that helped to blaze the trail for America's Second Amendment. In the 1688 English Bill of Rights we read the following:
That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
In addition,our Founding Fathers (particularly Madison) appealed to the works of one William Blackstone, who, in his Commentaries on the Laws of England, wrote the following:
"That it is a fundamental right of the people to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property...and the right of the individual to keep and bear arms to their condition and degree, and such as are allowed by law...is the surest way to ensure our liberties."
So why are these sources significant? Because neither one makes any mention of a "militia." In fact, they both speak of personal protection and the right to "keep and bear arms."

If that's so, then where did this "militia" talk come from? Well, it's actually more simple than you might think. Recent experience had told the colonists (now Americans) that citizens keeping and bearing arms was both a good and prudent thing to do. The experience of Lexington and Concord, where the British tried to disarm American colonists, had struck fear into the hearts of many. It was only natural that such a fear would make its way into the law. The important caveat to note here is that whether or not there is a militia is irrelevant to the issue of keeping and bearing arms. It's simply an argument over semantics.

In my opinion, the Second Amendment is much more than a simple law to create a militia. As Justice Scalia notes, the right to keep and bear arms is not a suggestion, a good idea, or an outdated law. It's a RIGHT!

And our Founders knew it.

2 comments:

Brian Tubbs said...

Good article, Brad.

I would also add that the Founders saw an armed populace as the ultimate check against government tyranny. By that, I'm not defending or endorsing the kooky militia groups out there. I'm simply pointing out what the Founders believed. It's not a coincidence that the Revolutionary War started over an effort by Governor Gage to seize arms and ammunition at Concord.

Brad Hart said...

Thanks, Brian. I totally agree. It's no coincidence that arms was the "trigger" to the American Revolution. Take away a people's ability to fight and revolutions become quite difficult to start.