There is a very strange argument that is made by politicians, the NRA gun manufacturing lobby and some others concerning the 2nd Amendment and the rights entailed therein. The argument goes like this:
The Second Amendment guarantees any person’s right to own any kind of weapon.
They take the 2nd Amendment and parse it out, emphasizing some of the words and ignoring others. Kind of like when Betsy asks me to take out the garbage. Me? Take out? OK , Let’s order a pizza.
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.”
They kind of skip the first 13 words and then start reading. Speed reading? Skimming for the general idea? Hmmmm.
The obvious intention of the founding fathers was that, in the 18th century, there would be times when the local government would need a call to arms. Maybe the injuns were coming or the Brits had decided to try to retake the village. Or perhaps the Canadians were on the march attempting to impose universal health care on our children and widows.
Hence the first 13 words. A well-regulated militia. Pretty clear. Well…regulated …militia.
Some folks, however, ignore those words. They don’t like them. The 13 words not only imply a strict government control over arms, they specify it. We may need a local militia, so you should keep a gun handy. That does not mean you can have a gun for any other reason.
Of course, if the founding fathers INTENDED that everyone should have access to a gun for any reason they had no need for those 13 words. They could have kept it much simpler, as in the 1st Amendment. Short and sweet.
So the first argument supporting the notion that anyone can have any kind of weapon for any purpose is easily shot down and understood by anyone with a modicum or more of cognitive ability.
Of course, because the Constitution is interpreted by the Supreme Court, it really does not matter what the founders were thinking. The Supreme Court decides what the words mean, not the founders.
And here we see an interesting phenomena. The conservative justices who CLAIM to be “strict constructionists” have actually changed the meaning of the 2nd Amendment. Now, I don’t mind the Court trying to keep up with modern times. I think the Supreme Court should do so. But I do find the hypocrisy of the conservatives on the Court somewhat amusing.
These same justices who claim to interpret the Constituion based on the “original” document and words of the founders tend to let this one slip by. The “originalists” suddenly found, after more than 200 years , that the founders didn’t realy mean “militia” when they wrote “militia”. The majority opinion in the Heller decision goes through more contortions than a Chinese acrobat trying to justify that one. But, they had the votes. So be it.
The Heller decision, giving all of us the individual right to own a gun states, in part:
“Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
So, the founders were simply wrong when they wrote “well-regulated militia“. So much for the “strict constructionist” viewpoint.
But that’s ok. Everyone now has an individual right to own a gun. We all agree because the Supreme Court says so.
Which brings us to a second argument made by the NRA gun manufactuting industry and their employees in Congress. It goes like this.
Since I have the right to a gun, that means I have the right to ANY gun. And that means I can carry any gun anywhere I want. Therefore, no state or national government can make any laws restricting my right to own my gun or where I can wander around with it. Any government that does that is trying to take away my gun.
The obvious fallacy of that position is clear. If you want to think about it. It would mean that the only unlimited right granted to citizens by the government is the right to have a gun. All other rights have associated responsibilities and limits, but not my right to a gun. It places the 2nd Amendment in a different category than every other right.
Of course, that argument is easily refuted. Just look at the 1st Amendment. We have the right to free speech. It’s right there, in black and white. But that right is not unlimited. We have libel laws which restrain speech. We have regulations as to what words can be used on non-cable tv stations. We have slander laws. We have laws against threatening to kill others, especially political leaders. Try telling a joke about having a bomb in your backpack when you are boarding a plane and you will see how quickly your “free speech” is dealt with.
The same is true of freedom of religion. You have the freedom to worship in the church or mosque or synagogue or basement of your choice. You can pray to anything you want to pray to. Some Native American churches are even allowed to void anti-drug laws because they have a longstanding use of peyote in their rituals. But if you are an Aztec and believe in human sacrifice, that is a no-no. A fundamentalist Mormon may believe he can have numerous child wives (and some do) but that is illegal. You can believe it is your right and religious duty as the “father” of the house to beat your kids and wife. But that is not tolerated. Limitations.
So, every right has legitimate, common sense restrictions. Even in the Heller case, the most conservative of the justices, Justice Scalia, pointed out that this right is not unlimited. Specifically stating, in his majority opinion, that schools and government buildings are places where restictions may be logically imposed. Also, certain categories of people, like felons, could be legally restriced from owning guns. Further, he stated that the government has the ability to restrict certain kinds of firearms, like military weapons, as well.
So, the idea that every person has an unlimited right to any type of gun he wants does not pass muster. Even the most conservative member of the Court, Justice Scalia, recognized that, while you have an individual right to a weapon, that right is not without proper government restrictions.
In essence, the most radical arguments of the NRA gun manufacturing lobby and the extremists goes down the toilet. The only question that remains is: What are reasonable restrictions?
2nd Amendment and Gun control, Part 2, next time.
Click to access 07-290.pdf