The Right to Keep and Bear Arms - Our Second Amendment

Last week, as I commented on, Hillary Clinton twice refused to answer when asked by former Clinton aide George Stephanopoulos about her view of the Second Amendment. Her answer, beginning with the words “If it’s a Constitutional right…” clearly show her belief that the Second Amendment is reserved for the government, and is not an individual right. In this post I’d like to discuss the placement and meaning of the Second Amendment. 

Key points:

·       The Bill of Rights is intended to restrict government, not “grant rights.”

·       The second amendment is in place for citizens to protect their natural rights from violation by both government and other criminals.

·       The Supreme Court has repeatedly ruled that the second amendment is an individual right, and that the “people” mentioned in the second amendment has the same meaning as the “people” mentioned in the other amendments.

The Bill of Rights is Intended to Restrict Government, Not Citizens
Our founders created a brilliant document designed to place the power in the hands of the people, rather than government. In penning the Bill of Rights, they recognized the importance of the citizen’s ability to speak truth to power without retribution.

It’s vital to understand that the Bill of Rights were put in place, and must be read, to restrict the government - not to restrict or “grant rights to” the people. The founding philosophy of the nation is that citizens have rights granted by their creator or by virtue of their birth, not by a government that can change them at their discretion – and that government’s function is to guarantee these rights, not to restrict them. For if a government can bestow rights, a government can take them away. The Constitution was never intended to give government that power. It was framed in a way to keep government from exercising that kind of power.

As James Madison put it, a Bill of Rights was added “for greater caution” to ensure a limited government.

The founders wrote the first amendment, restricting government from establishing a national religion or restricting free expression - particularly political expression. Most of the other Amendments restrict government from harassing citizens in one way or other, providing for due process, and making citizens secure in their persons, houses, and papers. They likewise recognized the need for citizens to be able to protect the republic from tyranny, both foreign and domestic, and included the Second Amendment.

A citizen has no rights which they cannot themselves protect. In fact, the courts have repeatedly ruled that the police have no obligation to protect citizens, or to even respond to an emergency call.

The Second Amendment is in Place for Citizens to Protect their Natural Rights 
The Second Amendment is in place to guarantee citizens the right to self-protection from other citizens and from the government, to help protect the nation from foreign enemies, as well as for practical tasks like hunting.

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.

Anti-gun people like to focus attention on the first half of the sentence, declaring that only the militia – in modern times our military – have the right to keep and bear arms. However, it’s abundantly clear from the writer’s quotes and comments of the day that the militia of which they wrote included all citizens, and that they fully intended for citizens to be armed against the possibility of government tyranny or oppression. These were people that had just fought, and won, a revolution against the most powerful government in the world over taxes believed to be oppressive – though by today’s standards the taxes they were paying were quite low.

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." - George Mason

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” – Thomas Jefferson

There is no mistaking that “the people” mentioned in the Second Amendment are the same “people” mentioned in the first, and other amendments.

While no one disagrees that there may be certain minimal limits placed on even constitutionally guaranteed rights, the essential freedom stated in the constitution must be guaranteed. Freedom of speech, for example, does not provide the unlimited right to commit fraud, perjury, or threaten the life of another.

Likewise, the Second Amendment allows for certain restrictions that have been put in place. Among the restrictions already in place:

·       National Firearms Act ("NFA") (1934): Outlaws for general use of weapons such as machine guns, short-barreled rifles and shotguns, heavy weapons, explosive ordnance, silencers, and disguised or improvised firearms.

·       Federal Firearms Act of 1938 ("FFA"): Requires that gun manufacturers, importers, and persons in the business of selling firearms have a Federal Firearms License (FFL). Prohibits the transfer of firearms to certain classes of persons, such as convicted felons.

·       Omnibus Crime Control and Safe Streets Act of 1968 (1968): Prohibited interstate trade in handguns, increased the minimum age to 21 for buying handguns.

·       Brady Handgun Violence Prevention Act (1993): Requires background checks on most firearm purchasers.

So, contrary to some of the rhetoric, the average citizen cannot obtain automatic weapons, and purchases through licensed firearms dealers require a background check, even if purchased at a gun show. Guns may not be purchased across state lines or online without going through a licensed dealer, requiring a background check of the purchaser. Guns may not be purchased from dealers with the intent of being resold to someone else that cannot meet the requirements (straw buyers). Purchasing of guns by those with drug or spousal abuse is largely outlawed as well.

Another argument of the anti-gun crowd is that our founders couldn’t have imagined any of the technology of today - but that’s a side issue. The first amendment was written in an age of parchment, pamphlets, and hand-set printing machines. They couldn’t have imagined that an enemy of the nation half way around the world could provide instructions to an American citizen on how to build bombs that would kill and maim hundreds, yet this has happened.

This doesn’t mean that the first amendment is outdated and the government should license citizens who may or may not discuss certain topics. This doesn’t mean that the government should limit your Internet data under the premise that “no one needs” to use their rights that much – yet they have no such qualms about the Second Amendment when they outlaw guns based solely on appearance (semi-automatic rifles), limit the number of bullets you may use for self-defense to five (while imposing no such limits on the police for their self-protection against the same criminals), or attempting to force citizens to buy only computerized guns of questionable reliability that provide the government the ability to turn them off remotely.

The Second Amendment is an Individual Right

In 2008, the Supreme Court ruled in Washington DC v Heller that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. The Heller decision did expressly address the question of whether the Second Amendment extends beyond federal enclaves to the states – a process known as incorporation. In 2010, the Supreme Court made such a ruling in McDonald v. Chicago. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.

Battles are still being fought in the courts to determine how much the government may restrict our rights, but recent rulings tend to show that the right to self-protection extends beyond the home, and that states cannot force citizens to prove to the police a “justifiable need” to self-protection, and must provide reasonable means for law-abiding citizens to protect themselves.

In one recent ruling, the historically left-leaning 9^th Circuit Court ruled that a zoning ordinance that essentially made the sale of guns impossible anywhere in Alameda County was illegal, since the right to bear arms certainly implies the ability to obtain them in the first place, and that the zoning restrictions – clearly intended to restrict such rights – is an undue burden.

Writing for the majority, Judge Diarmuid O’Scannlain stated that the “right of law-abiding citizens to keep and bear arms is not a second class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

While it’s clear that Hillary Clinton, like most politicians, only respect certain rights while disregarding others, will seek to restrict gun rights to the fullest extent if and when she’s elected President, there is no doubt that the Judicial Branch, charged with interpreting the Constitution, has ruled repeatedly that individual citizens do indeed have the right to keep and bear arms throughout the United States.

Also see: Hillary Clinton: “If it is a constitutional right" to keep and bear arms