Wednesday, November 4, 2009

The Second Amendment

The only thing more frustrating to gun owners than an anti-gun politician is an ambivalent politician or one who is uneducated about the Second Amendment. On my commute home I heard a radio interview with Republican candidate for California governor Tom Campbell. I called in and asked his views on the Second Amendment; specifically when it comes to issuing concealed weapon permits and the ban on most semi-automatic weapons sometimes referred to as the “assault weapons ban” in California. His answer was convoluted and vague, but basically he is for letting counties limit concealed weapon permits at will and banning types of rifles based on their aesthetics. He said the Second Amendment includes the word “regulated” which, to him, means the state can limit your right to keep and bear firearms.
The radio station cut me off after my question so I went home and started an e-mail debate with Mr. Campbell. To his credit, it was one he participated in. But credit for participation is where his credit ends.

A couple of excerpts from Tom’s e-mail to me:

“The well regulated portion of the text means the state, which trains the militia, has the right to regulate it, and to regulate it well.”

“The state has the right to decide what it takes to make its militia functional and trained. But, the individual has the right to keep and bear arms. The two parts have to work together.”

“Do you agree with me that weapons capable of doing huge harm can be kept from individual ownership? (Tanks, bazookas, etc?)”

Here is a man who was a congressman, an attorney, and a college law professor, but has no understanding of the Second Amendment from a legal, historic, or linguistic perspective. Tanks and bazookas? When has this argument been about tanks and bazookas? I asked him about commonly owned long rifles. There is no gun rights group or Second Amendment group…in fact there is no group of any kind in this county who is fighting for the right to buy tanks and bazookas.

The Second Amendment: 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.

This amendment codifies the right every human has to defend their self. This right stood before the Constitution and is a natural or God given right. As clearly stated as the Second Amendment is, it is a controversial string of 27 words.

The right to keep and bear arms is codified by the Constitution meaning it was made into code or in this case, specifically, law. The entire Bill of Rights is the story of the American War for Independence. The individual rights codified in the Bill of Rights were the rights being violated by the British that made the colonists secede. They felt they were doing the right thing as good Englishmen to preserve their inalienable rights.

The meaning of words changes over time. Sometimes those changes are small and sometimes those changes are significant. It is important to look at the time period and match the word used with the definition of that word during that time period. For example the word “awful” used to mean “deserving of awe” and the word “nice” used to be an insult only as far back as the 18th century. Etymology is at the heart of most controversy when it comes to the Second Amendment.

If you look back to the late 1700s when the Bill of Rights was written:
1) “well regulated” is a phrase that means trained or properly functioning. Clearly a defensive force can not properly function without arms. So we would call an unarmed defensive force not “well regulated”.
2) “Militia” – able bodied populous. I will spend a lot more time on this word later.
3) “State” – “A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government.” Webster’s 1828 Dictionary
4) “right” – natural endowment
5) “keep and bear” – retain and carry or wear
6) “Arms” – weapon “A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary.” Webster’s 1828 Dictionary
7) “infringed” – “To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law. To destroy or hinder; as, to infringe efficacy.”

If we take the meaning of each word at the time the words were written and string them together the Second Amendment would read more like this:
“Because the properly functioning ability for the population of all citizens to defend themselves is necessary for a free body of people united under one government, the natural endowment of the people to retain, carry, or wear weapons appropriate to the task and times, shall not be destroyed or hindered.”

Now that the meaning is more clear, who does this apply to? Let’s take a walk through legal history.

Supreme Court Cases:
U.S.A. vs. Miller – clarified that firearms designed for military use are protected by the Second Amendment. Military-style weapons are arms the militia would use. The exact quote is “ordinary military equipment.” This clearly shows that the Second Amendment was not about hunting and gun laws like “assault weapon bans” are totally unconstitutional.
Heller vs. D.C. – struck down the 30 year total handgun ban in Washington D.C. by affirming that the “right to keep and bear arms” is an individual right. This ruling did not clearly apply to the states because Washington D.C. is not a state.
McDonald vs. Chicago – will clarify that the Second Amendment is incorporated into the state level. But is this necessary? Take a look at the 10th Amendment.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The “right to keep and bear arms shall not be infringed” is stated in the U.S. Constitution meaning that this inalienable right is protected against the state government as well. Now let’s look at the 14th Amendment. Section one says:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and “nor deny to any person within its jurisdiction the equal protection of the laws”.

Stringing this all together and following the logic of all these decisions, ownership of weapons to arm the militia (individual citizens) is protected by the United States Constitution and cannot be superseded by state law.

We have laws in place now that are unconstitutional. It takes years to get this declared in court much like Heller vs. D.C. The argument can no longer be centered on individuals having the right to have pistols and rifles, even military style pistols and rifles. The argument should be, is it still relevant? The rights listed in the Bill of Rights are inalienable rights give to us by God or nature. Rights cannot be taken away, but they can be infringed upon. Is our country in a place were we are comfortable letting the government infringe on this or any right? The only way to do this is to repeal the Second Amendment.

I do not believe we are ready to give up on this right and I believe the overwhelming majority of Americans agree. This being said, it is time to challenge the people who run for office on this issue. It is an issue of basic liberty and the survival of the democratic principles. Do not let the person you plan on voting for…from local dog catcher on up to president…be ambivalent about your rights. Press them. Make them accountable. Force them to reveal their understanding, or lack thereof, of each of the principles our founding fathers felt were so necessary to basic human freedom that they would not ratify the Constitution without them all included. This included the Second Amendment. As your view on the Second Amendment goes, so go your views on rights and liberties in general.

1 comment:

  1. You would love the book "The Founders' View of the Right to Keep and Bear Arms" by David E. Young. Too bad Campbell never read it.



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