Thursday, March 2, 2017

Constitutional Amendments, part 2 (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.”

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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