Bruce's History Lessons: The oh so controversial second amendment

Tribune-Star ^ | December 11, 2007 | Bruce Kauffmann

[neverdem]

When the Bill of Rights was ratified this week (Dec. 15) in 1791, the Founders never dreamed that centuries later the Second Amendment would become so controversial. To them, “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,” was fairly straightforward language.

How wrong they were, as evidenced by the Supreme Court’s recent decision to rule on whether Washington, D.C.’s strict firearms law violates the Constitution, “a decision,” The Washington Post wrote, “that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections.”

The main controversy is over the phrase “A well regulated militia,” and its relationship to the statement “the people’s right to keep and bear Arms, shall not be infringed.” Gun-control advocates believe this language means that if you don’t belong to a “regulated militia” your right to own a gun can be “infringed.”

Gun-rights advocates counter by noting that the amendment does not grant a right; it recognizes a right already granted. The amendment does not say, “The people have the right to keep and bear arms.”

It says, “the (already established) right of the people to keep and bear Arms, shall not be infringed.” And they have a point. As even the Supreme Court has acknowledged, the right to own firearms precedes the Bill of Rights.

Gun advocates also note that because the amendment gives the right to bear arms to the “people,” not the states, claiming that this right is dependent on anything the states do or don’t do — including forming militias — is ludicrous. After all, the Bill of Rights mentions no specific rights that the states possess, but several the people do.

Two additional points: In 1791, most state militias did not give guns to militiamen when militias were formed. Militiamen brought their guns with them — from home. Indeed, the amendment says they can “keep” their firearms, not merely “bear” them during military service.

Finally, (my hero) James Madison’s original Second Amendment language was as follows: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.” Written that way, he is saying that if the people don’t have the right to arms, there can’t be a militia. That Congress reversed the order does not change Madison’s intent.

Granted, all constitutional rights, including free speech and gun ownership, are subject to reasonable restrictions — you can’t yell “Fire” in a crowded theater, and felons can’t possess firearms. But the general right to own firearms is constitutionally protected. We will see what the Supreme Court thinks.

Bruce Kauffmann’s e-mail address is bruce@history lessons.net

[neverdem]

Parker v. Washington D.C. in HTML courtesy of zeugma.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”

[longtermmemmory]

I said it before I will say it again, the court is going to do a “gimme” on the individual right but regulate the heck out of ownership.

They will also mention the “fire in a crowded theater” like this author.

[blackie]

Good stuff!

Be Ever Vigilant!

[VR-21]

One would think there wasn’t a single other document written by the founders that would clarify this.

[neverdem]

How do you regulate without infringing? That’s violating a right the people already had, IMHO.

[jrd]

I the court decides against the Second Amendment our country will self destruct!

[jrd]

If the court decides against the Second Amendment our country will self destruct!

[PeterFinn]

The USSC potentially ruling against the RKBA does not overturn it or erase it. Were the USSC to rule against the Right to Keep and Bear Arms it would merely mean that the time to affirmatively exercise that right was upon us.

[bill1952]

>but regulate the heck out of ownership

Well that would make the issue even more unclear.

After all, what does “shall not be infringed” mean if it does not prohibit “regulating the heck out of ownership?”

Come on, define “infringement.”

[Pontiac]

It says, “the (already established) right of the people to keep and bear Arms, shall not be infringed.” And they have a point. As even the Supreme Court has acknowledged, the right to own firearms precedes the Bill of Rights.

After all, the Bill of Rights mentions no specific rights that the states possess, but several the people do.

This highlights the most common misconception of most people about the Bill of Rights.

That is that the Bill of Rights is the granting of rights by the government to the people.

But truth is that the Bill of Rights was intended to be a Guarantee to the people that the rights that they had fought, bled and died to recover from the Crown would never again be usurped by a despotic government.

[Pontiac]

It was worth saying twice;)

[logic]

They will also mention the “fire in a crowded theater” like this author.

This argument has always ticked me off to an unbearable level. "Reasonable restrictions" of the second amendment is not anywhere close to a restriction of not being allowed to yell "fire" in a crowded theater!!!! An accurate comparison would be gun control is equal to being required to wear a muzzle to prevent you from yelling "fire" before entering a crowded theater...

[Cicero]

On the whole, an excellent brief summary.

The basic point is that the right to bear arms was a prior right, not given by the Constitution but recognized as already existing by the Constitution.

In other words, the right of self-defense is another “inalienable” right, like the inalienable rights to life, liberty, and the pursuit of happiness.

This certainly was recognized in Natural Law theory that preceded and influenced the Constitution. These rights are inalienable because they are given by God and are basic to human nature as God created it.

It’s not as if the Constitution gave these rights, so it can as easily be amended to take them back. They are inalienable, meaning not only that no one can take them, but that no one can even voluntarily give them away.

[CCCnative]

An accurate comparison would be gun control is equal to being required to wear a muzzle to prevent you from yelling "fire" before entering a crowded theater...
First time I've heard that. Great point!

[robertpaulsen]

"These rights are inalienable because they are given by God and are basic to human nature as God created it."

Which means all human beings have the right. Even if the person is an illegal in this country, we protect his inalienable right to life. Or a foreign visitor. Or a 3-year-old child.

But ... wait a minute. If the right to keep and bear arms is also a God-given inalienable right, don't these human beings also have it? Or did God only give it to certain people and not others?

Gosh. I'm confused. Are you sure having a gun is an inalienable right?

[Cicero]

Illegals have a right to protect themselves. But they don’t have a right to be in this country or to leach off of it.

The author uses the fire in a crowded theater example because that is a reasonable limitation on the inalienable right to free speech. As he says, it’s reasonable to say that convicted murderers and other serious criminals don’t have a right to bear arms. They still have a basic right to defend themselves, but they can’t be trusted with a gun.

Probably that applies to non-citizens in this country.

It’s always possible to think up exceptions and objections. Even a murderer probably has a right to defend himself. The law says he can’t own a gun, but moral justice might say that in extreme circumstances he would be right to defend himself, even though the law would punish him for doing it.

For instance, that convicted rapist that Huckabee freed who went on to kill a couple more people was earlier tied up in his home by a couple of gangsters who proceded to neuter him. Maybe you could say he deserved it, given his life of vicious crimes, but it would be hard to say he didn’t have a right to defend himself against such an attack.

[El Gato]

Granted, all constitutional rights, including free speech and gun ownership, are subject to reasonable restrictions — you can’t yell “Fire” in a crowded theater, and felons can’t possess firearms

Yelling fire can be punished after the fact, if it endangered others or unless there really was a fire of course. A felon being banned from owning a firearm because of what she might do, is another kettle of fish entirely. What if it was a non violent felony. Prostitution perhaps, or any number of other "crimes" which were once misdemeanors, but which have become "punishable by more than one year in jail" in our effort to "get tough" on crime?

[El Gato]

Even if the person is an illegal in this country, we protect his inalienable right to life. Or a foreign visitor. Or a 3-year-old child.

If the right to keep and bear arms is also a God-given inalienable right, don't these human beings also have it?

Sure they have it, but it's not protected by our Constitution. They are not part of "the people". Except for the 3 y/o, and the government may not infringe on her right either, but her parents may and should. But they should only in the course of training her to properly exercise the right.

I'm sure you saw the story about the 5 y/o decendent of Davey Crocket who took a 400+ pound bear with his own gun? Grandpa thought he'd missed, but he said something to the effect of "I didn't close my eyes and I didn't jerk the trigger, I kilt it grandpa" and he had.

[robertpaulsen]

"Illegals have a right to protect themselves."

I agree. I believe the right to protect yourself (ie., self defense) to be an inalienable right, given to all of us by God as part of our right to life.

But, unfortunately, that's not what we're discussing here. We are talking about the right to keep and bear arms and whether or not the right to keep and bear arms, even if those arms are used for self defense, is a God-given inalienable right.

"They still have a basic right to defend themselves, but they can’t be trusted with a gun. Probably that applies to non-citizens in this country."

I agree, but that hardly sounds like an inalienable right. I just can't picture God saying, for example, "I give to all the inalienable right to life and liberty ... except you guys over there, and you three in the corner, and you short people there by the tree because you just can't be trusted."

In my opinion, the right to keep and bear arms is a natural right. We were born with it. No person or government gives it to us. The decision on whether to protect this individual natural right, and to what extent, is made by the citizens of each state and written into their state constitution.

The second amendment is whole nuther matter entirely.

[robertpaulsen]

"Sure they have it, but it's not protected by our Constitution."

I thought our government protected God-given inalienable rights, no?

I remember reading something in some obscure document about governments being instituted among Men to secure certain inalienable Rights, among which are Life, Liberty, and the Pursuit of Happiness.

I find it hard to believe that we, as a country, would recognize a right as being inalienable and God-given and not protect it for every person.

"I'm sure you saw the story about the 5 y/o decendent of Davey Crocket"

Yeah. But I don't believe Davy Crockett was three when he killed his. I only think they said he was three because it rhymed with Tennessee.

If he was "born on a mountaintop in Michigan", it would have been, "kilt him a b'ar when he was only ten".

Just a guess.