Second Amendment

Guns, lots of guns

Earlier this year I wrote a piece of satire titled ATF, a post-apocalyptic strategy based on the stockpiling of alcohol, tobacco, and firearms. Although satirical in nature, and intended to be humorous, there is much truth, I believe, in that essay.

For the record, in full disclosure, I have never owned a firearm. This is a testament to living both in a country and in a locale where I have never felt the need to own a firearm. I do not hunt (nor do I fish). I don’t need to hunt; all my meat, fish, and fowl are easily procurable at my local super market. Yet I harbor no ill will toward those who do hunt. I may think that pure trophy hunting is a waste, but hunting (or fishing) to supplement one’s diet is fine by me (and if you happen to get a trophy, who am I to criticize). I don’t even have a problem with the subsistence hunting of protected species by indigenous peoples. They eat or use the entire kill and honor the spirit of the kill … and they don’t kill more than they need.

I seriously try not to put myself in harm’s way. I am not a hero. I fully subscribe to discretion is the better part of valor. Yes, yes I know the argument that without a weapon I am a victim. But there is more than one way to not be a victim. Make no mistake, the decision to own a firearm for self defense means that you must willing to take the life of another human being. This is a responsibility that is not to be taken lightly.

Tactical Firearms

I live within walking distance (a long walk for me) of Tactical Firearms where Piers Morgan of CNN held his famous interview earlier this past February.

Tactical Firearms is one impressive place.

All of my neighbors own guns as do many of my coworkers. For many (and perhaps the most vocal defenders of the Second Amendment) gun ownership is a lifestyle. For me personally, it is a lifestyle that I have chosen not to embrace due to my own personal time and cost constraints. Gun ownership requires dedication and practice … and can be expensive.

Zombies

That having been said, I am fascinated by weaponry, doubly fascinated by well built weaponry. I think that part of the allure of the Zombie Apocalypse genre is ability to employ massive fire power against a non-human enemy. Not being a gun owner puts me at a certain disadvantage with regard to writing about the use of firearms against the Zs. Hopefully this has not been obvious.

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.

That is the full text of the Second Amendment as regards firearms. What was the intent of our founding fathers?
What does Arms really mean?
How does the term Militia impact our understanding of the Second Amendment?
How does the term State impact our understanding of the Second Amendment?

The Legal Information Institute of Cornell University has an enlightening article on the Second Amendment, I would ask that you refer to it if necessary throughout with the rest of this post.

http://www.law.cornell.edu/anncon/html/amdt2_user.html

Pay particular attention to the following:

… there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an “individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a “states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints.

Please reread the above excerpt as well as the full text of the Second Amendment below.

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.

Nowhere does it address the concept of hunting weapons, nor does it address the use of weapons for self defense or home defense.

Furthermore it is clear (well maybe it isn’t clear at all) that the Second Amendment is more about what the federal government can or cannot do (infringe on the right to “keep and bear Arms”), than what each individual State can or cannot do (enact laws controlling and/or regulating gun ownership). Let me repeat this as it is very important. The Second Amendment (under one interpretation) is strictly about controlling the federal government. It says nothing about the State’s ability to limit the ownership and public display (or concealed carry) of firearms.

It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory.

the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.

Thus it was not until 2008 that the Second Amendment was ruled to include self-defense.

Since this post is not intended to be the authoritative treatise on the Second Amendment, I will stop here with regard to legal documentation, leaving this as an exercise for the reader. That does not, however mean I am done.

Supreme Court Rulings

So the Second Amendment right to keep and bear Arms is not solely based on the original text, but also on subsequent Supreme Court rulings as well as lower court rulings which the Supreme Court allows to stand.

Whereas the original text of the Second Amendment suggests that right to keep and bear Arms is in support of A well regulated Militia, it was not until 2008, that the Supreme Court ruled that the right to keep and bear arms extended beyond the context of militia service to include self-defense.

Arms

Notwithstanding subsequent Supreme Court rulings on the definition of the term Arms in the Second Amendment, what did the founding fathers mean? In the context of A well regulated Militia, this would have meant state-of-the-art weaponry available to the military of the time. To the extent that the hunting rifles and/or pistols of the time were not significantly different from the military rifles, these would have been technologically the same. But the term Arms goes well beyond rifles and pistols. Cannon and mortar would fall into this category as well. As would all manor of swords, knives, and axes.

Carrying this train of thought to present day, I would argue that the original text of the Second Amendment would not allow the federal government to prohibit the people from keeping and bearing: semi- and fully-automatic pistols, rifles, and shotguns, flame throwers, anti-tank weapons, anti-aircraft weapons, all manner of mortar, and cannon, tanks and armored personnel carriers, aircraft, etc., although mechanized equipment are not technically Arms.

Defense Against Tyranny

Many people have advocated that the Second Amendment provides for an armed populace in order to resist (or overthrow) a tyrannical government (as in our own should it become such). There is however no mention of this in the Second Amendment itself. I am sure that no recent past, present, or future version of our government would ever be supportive of an armed populace overthrowing it. So as much as we might like to cite this as being part of the Second Amendment, I don’t think that this is supported by either the original text or subsequent rulings.

All of this comes down to the fact that the Second Amendment is both extremely specific and extremely vague in what it grants to you and I the average citizen.

Mass Murder of Innocents

This is a tragic and horrific thing that has caused no end of soul searching on both sides of the gun debate. I am certain that the founding fathers held as sacrosanct the proposition that only adult men (and today, women) of sound mind and body would ever be the people for whom the right to keep and bear Arms was in question. Children, criminals, the mentally infirm, and other socially irresponsible individuals would never have been considered under the Second Amendment.

And so it is today. No person guilty of the heinous crime of the murder of innocents has ever been qualified under the spirit of the Second Amendment to keep and bear Arms. I suspect that the founding fathers would be supportive of measures to restrict access to Arms by individuals of poor mental capacity or judgement. Unfortunately recent attempts to sensibly keep deadly instruments out of the hands of the irresponsible have been hyped as a ploy to deprive responsible citizens of their Second Amendment rights. To say that this is unfortunate is an understatement.

Discussion

At the end of this post (as with all posts) there is a place for your comments. I would ask that you keep the discussion civil and provide supporting links for your positions when possible.

Epilogue

I think that sometime later this year (2014) I will endeavor to procure a .410 semi-automatic gas operated shotgun for “home defense”. Why .410? The Mrs wants one …

3 thoughts on “Second Amendment

  1. 1.which people have the right to own and bear arms? The government people, or all people. To keep a free State, we the people as in all the people. Have the right to own and bear arms without infringement. If we allow the states to hamper or get in the way of free people owning firearms. Then only the state has the right to have a militia. Remember our founding fathers. Fought against the abusive government, & won! We the people have the right to own any military weapons. Without infringement. To me the Second Amendment is clear. The Constitution doesn’t guarantee you safety in America it guarantees you the right to protect yourself!

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  2. I wonder what the Founding Fathers would say if they could come back and see our armor-piercing bullets and advanced weaponry. These arms are not meant for hunting but for the sole purpose of killing people and too often are in the wrong hands. What would they think about this? Would they have amended their amendment?

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