February 28th, 2020
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Freedom vs. Safety: The 2nd Amendment In The 21st Century |
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In Defense Of Liberty
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Those Americans who recognize that any system of government is capable of abusing its citizenry understand the need for checks and balances. History is filled with examples of invididuals in position of power who believed that they and they alone knew what was best for the common people. Interestingly enough, one of the first things these leaders do is to disarm the population so that they cannot resist (consider Nazi Germany and current day Venezuela). This very issue that was faced by our Founding Fathers a little over 200 years ago when they sought, unsuccessfully, to address injustices committed by the English Crown against it's colonial citizens. The protection against such tyranny that these patriots understood was a necessary ingredient of any true democracy was the ability of population to forcefully resist their oppressors. The concept of a government that is all-powerful, and yet benevolent and honest, is an utter fallacy. Those who believe the surrendering of certain rights will allow the government to protect and take care of them, is an absurd fantasy. It is because governments are fallible that the Constitution was designed with both checks and balances, and inalienable rights to protect the individual from governmental overreach. The liberties that we enjoy as Americans come at great cost. As the saying goes, "Freedom isn't Free!" |
The Constitution, The Bill of Rights, & The 2nd Amendment
There are three documents that are vital to understanding the birth of this nation and it's foundation in democracy and individual freedoms. These include the Declaration of Independence (1776), the U.S. Constitution (1789), and the Bill of Rights (1791).
Declaration of Independence - Signed on July 4th, 1776, this document announced the American colony's independence from the Great Britain. When England signed the Treaty of Paris in September of 1783 the Revolutionary War was officially over, but it left America as thirteen individual states, not a unified nation.
United States Constitution - The Articles of Confederation had been ratified by all thirteen states in March of 1781 (prior to the ending of the war), but it did not provide for a strong, centralized government. Due to the failings of this agreement, the Continental Congress continued to meet. Work on the U.S. Constitution was begun in 1787, was ratified in June of 1788, and became effective on September 17th, 1789. This document created the rules by which our federal government still operates, and is designed as a compromise between state rights and federal power. Included were the creation of the three branches of government (executive, legislative, and judicial) which were designed as checks against one another to ensure that no one branch, group, or individual, could rule with absolute power.
Bill of Rights - While the Constitution is the 'rule book' for our government, it did not directly address the personal freedoms of individual Americans. The first ten amendments to the Constitution are the Bill of Rights. These include:
- Amendment I - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
- Amendment II - 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.
- Amendment III - No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment IV - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment V - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment VI - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
- Amendment VII - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
- Amendment VIII - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment X - 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.
So where does the 2nd Amendment come in? Why was it incorporated into the Bill of Rights, and how is it relevant 200+ years later? It must be remembered that originally our Founding Fathers had no intention of cutting their ties with Great Britain and starting up their own independent country. They considered themselves British, and wished to remain British. Their primary complaint was that they were not being treated fairly with regards to economic requirements and taxation. When it became apparent that peaceful, political means was not going to achieve their goals, and that the Crown was going to use military might to enforce these unfair practices, the colonies were left with only one option, and that was to fight. If arms were not readily available this would have been a very short, and very one-sided affair, and we would still be British, not American. While writing the Constitution the Founding Fathers were extremely concerned about the power of government and it's potential abuses. They wanted to ensure that governmental powers could not be used to suppress freedom, and therefore put in place certain 'rights' to protect those freedoms. The 1st Amendment protects our ability to speak up and voice our opinions, even should they be critical of those in power. This is an incredibly important right (one that many around the world still do not enjoy), but this right, along with all the others amount to nothing if there is no way to protect and preserve it. This is where the 2nd Amendment comes to play a critical role.
Court Precidents
Interpreting the Second Amendment
United States v. Cruikshank, 92 U.S. 542 (1875) - A post Civil War era case relating to the Ku Klux Klan depriving freed slaves basic rights such as freedom of assembly and the right to bear arms. The court ruled the application of the First and Second Amendments "was not intended to limit the powers of the State governments in respect to their own citizens" and "has no other effect than to restrict the powers of the national government," respectively. In summary, it ruled the federal government could not file charges against citizens in federal court regarding violations of other citizens' constitutional rights. It was up to the states to protect the fundamental rights of its citizens when their rights were abridged by other citizens.
Presser v. Illinois, 116 U.S. 252 (1886) - This second post-Civil War era case related to the meaning of the Second Amendment rights relating to militias and individuals. The court ruled the Second Amendment right was a right of individuals, not militias, and was not a right to form or belong to a militia, but related to an individual right to bear arms for the good of the United States, who could serve as members of a militia upon being called up by the Government in time of collective need. In essence, it declared, although individuals have the right to keep and bear arms, a state law prohibiting common citizens from forming personal military organizations, and drilling or parading, is still constitutional because prohibiting such personal military formations and parades does not limit a personal right to keep and bear arms:
We think it clear that there are no sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.
The Court also noted that the Second Amendment only restrained the federal government from regulating gun ownership, not the individual states:
The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.
United States v. Miller, 307 U.S. 174 (1939) - The Court stated in part:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
District of Columbia v. Heller, 554 U.S. 570 (2008) - The Court ruled the Second Amendment to reference an individual right, holding:
The Second Amendment guarantees 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. [1]
McDonald v. City of Chicago, 561 U.S. 742 (2010) - The Court ruled that the Second Amendment was incorporated against state and local governments, through the Due Process Clause of the Fourteenth Amendment.[2]
- In the decision, the Court said:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. [3]
- Caetano v. Massachusetts, 577 U.S. ___ (2016) - The Court ruled that the Second Amendment extends to all forms of bearable arms:
The Court has held that the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding, and that this Second Amendment right is fully applicable to the States.[4]
- New York State Rifle & Pistol Association Inc. v. City of New York, New York (2019) - The Court has agreed to hear oral argument sometime in 2019. The case is regarding a New York City law that forbids the transfer of unloaded and locked firearms from one's residence to anywhere other than one of seven shooting ranges within the city.
Assault Weapons & Weapons Of War?
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For most of the later half of the 20th century the two primary assault weapons (or assault rifles) are the AK-47 and its derivatives manufactured by communist bloc countries, and the M16 family of rifles used by the United States and many of its allies. What makes these both assault weapons is that they fire an intermediate cartridge, offer select-fire capability, and use detachable box magazines. Using this more specific definition there are in actuality very few assault rifles legally in civilian hands. In addition to this, the criminal use of true, legal assault rifles is incredibly rare. Unfortunately, perception is more impactful than truth or accuracy.
Personal Views
Unpopular?
I will say right off that my personal views on firearm ownership and the 2nd Ammendment will not be popular with some in the gun community. Obviously I support 'the right to bear arms' (or I wouldn't have put this website together), but I also feel strongly that with this 'right' comes tremendous responsibility.
"Shall Not Infringe" vs. Proactive Measures
The 2nd Ammendment reads 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."
The last four words, '...shall not be infringed,' are commonly taken by some to mean that no laws, ordinances, or controls of any kind will be instituted which would prohibit an individual from owning whatever arms they can afford. While I understand the aggressive interpretation of this phrase, we must be careful about an absolute literal interpretation. To make an extreme, and admittedly absurd example, this would mean that convicted fellons currently serving time in prison should be even be allowed a machinegun or RPG! Yes this is ridiculous, but I also feel that it is equally ridiculous ridiculous to simply parrot "Shall not be infringed!" and refuse any and all discussion regarding responsible firearm ownership. Whether we like it or not, there is a large portion of our American population that fears guns and seeks to pursue gun control legislation. I feel that it is not only in our best interests, but also our responsibility to investigate and promote ways to ensure responsible firearm ownership.
The Militia
One of the debating points of the 2nd Ammendment seems to focus on the concept of just what is and the purpose of a militia. Generaly, those who support gun control will say that our modern armed forces IS the militia and therefore no one outside the military needs these 'weapons of war.' This is absolutely wrong. A militia is made up of the people, meaning the civilian population. The purpose of the militia is to not only support the formal military in time of war, but to resist government oppression, including the military should they carry out the orders of an oppressive government.
Anti-gunners will say that even if you use this definition of a militia it is futile to stand up to our modern military with their overwhelming force and technology. What can a group of 'gun nuts' do against tanks, stealth fighters, and cruise missiles? There are two points here that I think are important to consider... First, this argument makes the assumption that the entire military structure will obey unconstitutional orders. While there will certainly be many who will obey such orders, I can guarantee you that it won't be everyone! The second point I think is much more obvious and easy to make. It is only one word, and it is "Afghanistan." Since the Soviet invasion in 1979 this country has been fighting off military powers that far exceed their own capabilities. The United States has been fighting the Taliban for close to ten years now and yet they continue to fight and resist. I am not saying this because I support the Taliban, but rather to demonstrate that a determined people can hold off a far superior force almost indefinitely. Something for those who think that America's gun owners are simply going to turn over their guns if they manage to pass the laws they want...
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'Military-Style' Firearms & 'High Capacity' Magazines I am always amazed by not only the lack of research the anti-gunners do, but also the seemingly total absence of logic in their thinking. Starting with their confused interpretation of the 2nd Amendment, they often say that no one needs an AR15 for hunting, target shooting, or even self-defense. The 2nd Amendment has ABSOLUTELY NOTHING to do with recreational shooting, or even self-defense for that matter! It is about the citizenry having the ability to resist violent government oppression. That's it, end of story! I certainly can't speak for every gun owner, but if I have to fight against an oppressive government I don't want to be stuck with a hunting shotgun or a snub-nosed revolver. I want a firearm that is going to give me the greatest advantage in a combat situation, such as the AR-15. I also want high capacity magazines. In mass shootings the killer rarely has someone shooting back at them. Even if they were limited to 10-round mags they would still be able to reload at their leisure and continue to wreak havoc. If, however, you are fighting against an organized and well-equipped force who will be shooting back, then these magazines are a necessity. |
Background Checks & Red Flag Laws
I must say that I do support background checks, and I believe that we could be doing more to ensure that individuals purchasing a firearm are legally entitled to do so. Convenience, speed, and ease of the transaction should not be the issues that determine how a background check is conducted.
Before the current 'instant' F.B.I. checks came into being, there was a push against waiting periods which many states, including my own state of Oregon, had on the books. The common argument against waiting periods was that if someone was in fear of their life and needed a firearm for protection that they should be able to purchase a gun immediately. In my opinion this is a risky assertion. If the individual in question has an imediate need a firearm for protection and they don't already have one then it is very probable that they have little to no experience with firearms. Simply purchasing a gun sans training is not going to make you more safe. I think it more likely that the individual ends up hurting themselves or an innocent bystander due to lack of experience, or the attacker is simply going to take the gun from them and use it against them.
Concerning the recent rise of "Red Flag Laws" in various jurisdictions, I have to admit that at first I felt that there was some merit to the idea. If an invidual who possesses firearms had behaved or made statements that seem to indicate that violence against self or others is iminent, it seems like a good idea to allow law enforcement to temporarily confiscate these weapons until further investigation either convicts or vindicates the individual. Like I said, it sounds 'reasonable,' but not only such a system open to manipulation and abuse, it also violates due process (remember that pesky Constitution?). Would such a law prevent tragedies? I think it would be dishonest to say 'no,' but we must consider the costs to our democracy. Remember, freedom isn't free!
Common Sense & The Slippery Slope
I hate the phrase "common sense gun laws." By using this phrase those who are in support of such laws are basically saying that you are an idiot for not agreeing with them and therefore shouldn't have a voice on the matter. It is obvious that these individuals really don't understand the concept of 'common sense.' Common sense does not mean a quick, easy, or obvious fix to a problem. When the antigunners use the words 'common sense' they don't want an argument. They already have their agenda, and because they do not want to take the time to investigate the true causes of the problem, or the potential costs of their simple solution, they try to end the debate before it begins. If you do confront them with facts and evidence they balk and use emotion and self-righteousness to attempt to quash argument.
The 2nd Ammendment has been well defended for most of our country's history. There have been some setbacks of course, but we still retain our right to possess firearms in defense of our liberties. Those who would like nothing better than to eradicate the 2nd Ammendment altogether may be wrong in their thinking, but this doesn't mean their stupid. For years they have been adjusting their tactics. Rather than a full frontal assault on our liberties they will often try to chip away, again citing 'common sense' in their actions. But with each chip they manage to take away the weaker America gets. Each little law or regulation they pass makes it easier for the next piece of legislation to make it. This is the slippery slope. If they were to propose a law that would limit magazine capacity to 30 rounds a lot of people would probably say "that's fine." But it won't be too long until they come back and say that either the law is helping and so we need to do more, or the law isn't working and so we need to do more. Either way it will soon be 20 rounds, then ten, etc. It would be the same way if they were able to ban certain types of firearms. If they got their way and with a snap of their fingers eliminated every evil, black rifle do you really think they would be satisfied? Are the criminals simply going to give up crime because their stolen AR15 is gone? Of course not, they're going to use some other firearm instead until the anti-gunners ban that as well. This process will be repeated over and over again until there is nothing left. As I said before, this is the slippery slope. We must take a stand, and where we stand we will not be moved!