“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.”
Perhaps no other sentence in the Constitution has received
so much scrutiny or been so hotly debated in the past fifty years as the Second
Amendment. Those who would have greater
control on the manufacture, sale, and ownership of guns would just as soon forget
this amendment existed and work routinely to show it is no longer
relevant. They are aided in these
endeavors by courts who within their authorities will reconstruct what the
words mean to further the cause of gun control.
On the other side of the coin, there are those who would
argue that any law that even mentions gun ownership in any way should be
considered unconstitutional and must be challenged.
The amount of money spent on lobbying, advertising, and litigation
on this issue alone is staggering. We see
everyone throwing numbers around to suit their purpose. “Anti-Gun Control Groups Spent 19 Times as
Much on Lobbying…”[i], “Bloomberg
to spend $50M on new gun control effort to challenge NRA”[ii],
“America’s Gun Economy, By the Numbers[iii],
the list goes on and on. The left
vilifying the NRA spending, with the right defending it.
In looking at this issue my first thought was what was the
intent of this protection in the minds of the original framers of the
Constitution. Why was it the second most
important right in their minds. In
searching for that position, I discovered a document I had never heard of “The
Virginia and Kentucky Resolutions of 1798[iv]”also
referred to as “The Kentucky Resolves.”
This document was originally authored by Thomas Jefferson, although most
indications are he chose not to be associated with it once it entered into the
public forum.
The resolutions outline the southern states concerns over
the expanding powers of a central government and seek to limit those powers by
establishing a consensus from the other states.
It began life as a response to the passage by the Congress of the Alien
and Sedition Acts of 1798, which gave the President the power to expel dangerous
aliens, and to detain, arrest, and deport resident aliens from dangerous
countries in the times of war. The
several acts also lengthened the period of naturalization for immigrants, and attempted
to silence Democratic-Republican criticism of the Federalist Party. [It is funny how some things never change.]
Next there is a summary written by Daniel J. Schultz
writing for “The ‘Lectric Law Library.[v]” Mr. Schultz focuses in on the terms “well
regulated” and discusses at some length the difference in meaning the framers
had and what we in our common dialogue believe it means today, but again we
come back to the concern over the power of a central government and the
potential need to balance that power.
Mr. Schulz writes…
“The words ‘well regulated’ had a far different
meaning at the time the Second Amendment was drafted. In the context of the
Constitution's provisions for Congressional power over certain aspects of the
militia, and in the context of the Framers' definition of ‘militia,’ government
regulation was not the intended meaning. Rather, the term meant only what it
says, that the necessary militia be well regulated, but not by the national
government.
To determine the meaning of the Constitution, one
must start with the words of the Constitution itself. If the meaning is plain,
that meaning controls. To ascertain the meaning of the term "well regulated"
as it was used in the Second Amendment, it is necessary to begin with the
purpose of the Second Amendment itself. The overriding purpose of the Framers
in guaranteeing the right of the people to keep and bear arms was as a check on
the standing army, which the Constitution gave the Congress the power to ‘raise
and support.’”
There are a number of other issues noted that all involve
the use of a militia as necessary to counter abuse by a central government, and
how the first step in an authoritarian regime is to disarm its citizens. This same argument is routinely espoused
today by those who oppose any kind of gun regulation, but it does not answer
the question, do we have “well regulated” militias that could stand before the
Army that our Congress has created?
Since our founding, we have seen a general rebellion put
down by that standing Army, and a myriad of laws and legal challenges to those
laws. The US Supreme court has at times
sided with anti-gun/increased limits on ownership (see United States v. Miller
1939), and at other times with the anti-gun control/individual rights (see
District of Columbia v. Heller, 2008).
In today’s world, the right of the US Government to
establish laws regarding the manufacture, sale, and ownership of firearms is a
given. The only thing under contest is
the forms of those laws will take and the challenges to them by dissenting
groups. Forgive the pun, but this gun
fight isn’t over.
If the anti-gun lobby wants to eliminate the right of
private ownership their only path seems to repeal the second amendment. Anything short of that keeps the right of gun
ownership alive.
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