Friday, January 25, 2013

The Second Amendment

Second Amendment
P. Schultz
January 25, 2013

            The text of the second amendment read as follows:

“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.”

            It has been a question whether this amendment protects a “personal” right to bear arms or whether it protects that right only for purposes of maintaining a militia. Well, the amendment is best understood as protecting a personal right and for the following reason. The Federalists were opposed to any bill of rights being part of the Constitution. As Hamilton argued in the Federalist, such a bill was deemed unnecessary in a political order such as that created by the Constitution. Such bills were necessary in monarchies, for example, but not in a representative republic.

            Bills of rights were important to the Anti-Federalists. However, they were understood primarily as statements of general or basic principles, such as “All power is derived from the people,” a statement found in several state constitutions. They were not understood as provisions that would be used as the basis for lawsuits filed against the government. It would be more appropriate to say that they were seen as providing bases for protest or for seeking a redress of grievances. 

           [As an aside: "lawsuits filed against the government" is misleading because these lawsuits are filed within the government and only with the government's approval. To say that "I will appeal my case all the way to the Supreme Court" has a somewhat "radical" ring to it in the United States but it should be remembered that the Supreme Court is part of the government! "Oh, so Ms. Radical, you are going to appeal your case against the government to the government. How radical! Oh my, oh my, whatever will the government do?" The point is this: The change in the character of the bill of rights as found in the Constitution and as desired by the Anti-Federalists reflects a change in the character of politics as implied by the Constitution and as desired by the Anti-Federalists. The latter were more favorably disposed to what we would call popular protests than the former, where popular protests morph into legal cases that are to be decided by the government in its courts. This is not a small difference.]

            The second amendment, unlike the other amendments, has this character. Hence, the purpose for which the right to bear arms exists is stated, whereas in the first amendment, for example, no such purpose is stated. It follows then that the statement of purpose does not and was not intended to limit the right to bear arms to members of a militia. In this sense, this is a personal right, the stated purpose of which is “the security of a free state.”

            Of course, this still leaves the question, a question lawyers have little trouble arguing, of what constitutes an “infringement” on the right to bear arms. Does, for example, preventing people from owning bazookas or rocket propelled grenade launchers constitute an “infringement” on this right? Not many would argue that such a prohibition would be an infringement on this right. And it would seem that a good place to start for understanding this amendment would be with the thought that what the authors and ratifiers of this amendment had in mind were arms that citizens would normally own and not, say, cannons or, eventually, Gatling guns. In fact, it may be argued persuasively that the private ownership of some arms like Gatling guns or 50 caliber machine guns would compromise “the security of a free state.”

            Perhaps it would be useful if more people would realize that the bill of rights, like so many other provisions of the Constitution, raises as many questions as it answers. And, of course, we have to answer them today. It is no longer possible to answer them as some would have answered them in 1788 or 1860 without the answers seeming and being irrelevant to current circumstances.



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