My Opinion

The Bill of Rights and the 2nd amendment; a perspective to consider; room for debate

Is the problem the Constitution or we the people?

As most people know, the Second Amendment says, “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.”  In a 1939 case the Supreme Court explained that the Framers included the Second Amendment to ensure the effectiveness of the military. That was not changed until 2008 in a 5-4 decision. The Fifth amendment adds further credence to the thinking of the Militia as an entity to be considered differently when it exempts from grand jury indictment in the case of capital crime, cases arising in land or naval forces or in the militia.

Proponents of unfettered gun possession argue generally using only the last fourteen words of the 2nd amendment and ignore the more relevant rationale presented by Madison, etc. If the last fourteen words were the entire amendment, there would be no room for debate, but that is not the case. And, if we were to take the last fourteen words literally, there would be no way to keep any arms out of the hands of any citizen, but we do have some limits. In 1789 there was no practical distinction between private and military arms for the individual solider or militiamen.

If the words “A well regulated Militia, being necessary to the security of a free State” are irrelevant, why were they written as part of the amendment?

I doubt many people would disagree that society and the United States were quite different in 1789; the revolution was barely over, there was a lingering fear of a strong central government, states were fighting to preserve their rights and little thought had been given to a strong military controlled by a federal government.

More than one of the amendments in the Bill of Rights are out of date in 2016, For example, the III, no soldier shall be quartered in any house, the VII, the right of trial by jury where the value of the controversy shall exceed twenty dollars.

Let’s examine the words in dispute; well, regulated, militia and state. Following are dictionary definitions relevant to the topic.

So, in a good and thorough manner provide a standard for the operation of a body of citizens called out periodically for military service … Hence, those citizens being required to provide their own arms for military service shall not be prevented from doing so.

Well

1. in a good or satisfactory manner:

2. thoroughly, carefully, or soundly:

3. with propriety, justice, or reason:

Regulated

1. direct by a rule, principle, method, etc.:

2. to adjust to some standard or requirement, as amount, degree, etc.:

3. to adjust so as to ensure accuracy of operation:

4. to put in good order.

Militia

1. body of citizens enrolled for military service, and called out periodically for drill but serving full-time only in emergencies.

2. a body of citizen soldiers as distinguished from professional soldiers.

State

1. the central civil government or authority.

2. made, maintained, or chartered by or under the authority of one of the commonwealths that make up a federal union

For more of a discussion on this topic I refer you to the Constitution Center

As is the case today, the “militia” is under state control unless specifically called to duty for federal service. I can attest to that having been in the NJ National Guard for four years and then being called to active duty for 22 months more … With my weapon retained in the armory I might add.

Regardless of the position you take on this issue, there is another bigger issue; why are so many Americans obsessed with guns? When there is a hint of new gun control, sales boom, millions of Americans own semi-automatic weapons. And by some estimates there are more guns than people in the U.S.

What does our obsession say about our society? Who is it we fear; our own government, our fellow citizens? Today the excuse in some quarters is terrorists, but that is a phenomenon only relevant in the last fifteen years or so. There is no doubt using a gun provides a sense of power, exhilaration; there is a rush, is that the attraction?

Via the Washington Post 10-5-15

Updated figures are calculated figures by gunpolicy.org. According to the Congressional Research Service, there are roughly twice as many guns per capita in the United States as there were in 1968: more than 300 million guns in all. This computes to 93 guns per 100 people.

In my view we have distorted the intent of our own Constitution and without the unanimous concurrence of the Supreme Court. We are victims of an arms industry not shy about exploiting the young who are influenced by game and entertainment violence.

We decry the violence created by radical Islamists while being the most violent advanced country in the world. What the hell is wrong with us?

image1Our real problem is not how we interpret the Constitution, but rather why we feel compelled to possess more guns than we have citizens. We need a good session on the couch.

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16 replies »

  1. The duty to form militia, and the individual right to keep and bear arms have always been known to be complimentary, to run in parallel, not one as the justification for the other. That was clear, even in terms of Madison, Jefferson, and the rest of the founders. It is clear because the various states had comparable provisions, which not only confirmed the individual right, but also that the individual had a right to keep and bear arms both under federal and state constitutions.

    If the right to keep and bear arms was limited to militia duty, which was a state, not a federal function (then and now), well, why would we even need a federal constitution amendment? Conversely, if the framers did not believe there were both state and federal individual rights, why would states, contemporaneously, create 2nd amendment individual rights provisions in state constitutions that SAY NOTHING ABOUT MILITIAS?

    There is no question what the intent of the framers was. If you want to move on and argue that those times are long gone, and the second amendment and any other provisions of the constitution need to be changed, start organizing your national conversation.

    A national conversation will surely be prompted if all those who believe in changing the individual right to the second amendment come out in favor of a constitutional amendment. So, have at it. Right now, both the D’s and the R’s are just positioning to create campaign issues – see the votes this week. What crap!

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    • Perhaps because the framers realized that the militia was the backbone of the federal military at the time and they sought to preserve that force even if a state tried to do otherwise.

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      • But, the framers didn’t give the federal government the authority to call into action a state militia – so, not sure how restricting the federal government’s authority by creating a federal, individual right to keep and bear arms could be interpreted as support for state-based militias. Remember, “incorporation” is a 20th Century concept – long after the framers were dead and gone.

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  2. The laws against outright gun ownership or restrictions in France, CA, IL, FL, NY, D.C. or any other place on Earth has not stopped people from getting guns and killing people. Just like laws against speeding, does not stop people from speeding. Many people in 1776 saw that the right to bear arms was need to protect the citizens from a Federal Government that would become to powerful and limit all our rights and might need to be overthrown. It is time to stop blaming the law abiding gun owner or gun and hold the criminal responsible for his crimes, period. Maybe if someone in Orlando, FL had been armed they could have stopped the gunman. Just because you do not like what some people do with guns, no matter how terrible, does not give you the right to take away citizen’s rights.

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    • Except with 300 million guns in America you would think we would be the safest place on earth. All the good guys are armed to the teeth to get the bad guys. Unfortunately, the opposite is true. We are the most violent developed nation on the planet. The idea that the right to bear arms is right up there with life, liberty, the pursuit of happiness, religion, and free speech is a conundrum to me.

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  3. The Supreme Court said I can own a gun. End of story. Lets move on to the causes and solve why people want to kill others. They will always find a way.

    Once again I offer that you substitute any other right and then have a national referendum on the question. I say we vote on taking away your right to free speech because hate speech is permitted under the Bill of Rights. You hate my right to own a gun. Mr. Trump and my wife want to banned Muslims immigrants all because small percentage want to kill us. To which I answer; what were the Catholics trying to do to the Muslims during the Crusades? I guess alcohol falls under the right to pursuit happiness because we tried to ban it by 18th Amendment and had to give it back.

    My wife never has an answer for which will be the next right taken away from us. We already have given up our freedom to travel because it is not a right so what is next? There is a reason there is a Bill of Rights. I raised my hand and volunteered to protected it and I will do so to this day.

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    • RD, take off those rose colored glasses. 95% of gun owners never us a gun for anything but target practice and sports hunting or self defense. Our courts need to enforce the laws that are already on the books. Instead of letting the criminals out early, so they can commit another crime. Build more prisons and keep them locked up. A federal law that if you use a gun you go to jail for 25 years would be a good start. I wish people would just stop blaming the GUN.

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    • If you do not believe that the government is trying to take away your rights then just look at today’s Supreme Court ruling in UTAH v. STRIFF. Today (6-21-16) the court ruled 5-3 that your Fourth Amendments rights do not count. The police may illegally stop you without reasonable suspicion as long as they can find eventually find any small infraction against you. According to dissenters Justice Sotomayor and Justice Ginsburg, if you are a minority, look out.

      And that is one reason why the pro 2nd Amendment people will not compromise because we pay attention to history and how government has been eroding our rights for a long time.

      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.

      Image walking down the street and being stopped and frisk without cause as in this case and then being arrested.

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  4. “In my view we have distorted the intent of our own Constitution and without the unanimous concurrence of the Supreme Court. ”

    Well, uh, yes. But this is true of many issues which the not unanimous Supreme Court has ruled on over the past fifty years. This is not meant as a justification. I agree, the right to bear arms as with all other rights, has limits.

    But let’s keep this in perspective. According to the National Center for Health Statistics, homicides by firearm totaled 10,945 in 2014. Meanwhile, unintentional poisoning (which includes drug/alcohol poisoning) totaled 42,032. Unintentional falls totaled 31,959. Traffic deaths 33,736.

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    • We must not forget the 98,000 to 440,000 Americans who died each year (depending on which study) of medical malpractice. The 440,000 deaths was an updated study completed in 2014. At least a murderer does not send your family a bill after the fact.

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  5. The pen is mightier than the sword. However, I would offer a few thoughts.

    1. You do not go to a gun fight or fend off imminent death with a pen or a sword.

    2. A trained individual meeting specific processes can and should defend them self and their family members in cases of deadly force.

    3.Todays threats in case you have not noticed occur in gun free zones and come in all forms.

    4. History tends to repeat it self. Take away ones ability to defend themself and you open the door for criminals or radicals to overtake areas.

    5. Calling the police in cases of violence takes minutes. Criminals can kill or injure many in those minutes. This is a reality and not a smack at those fine men and women who put their lives on the line daily for us.

    6. If you live in one of four states that prevent you from obtaining and/or using a weapon when death is apparent within the laws already on the books and used in the other 46 states, my suggestion is to move. Travel throughout the US in states outside those gun free states and at least 1/3 of those around you are legally carrying self protection.

    You may not agree with these statements any more than we disagree with the rhetoric seeking to limit or remove OUR rights to defend ones self.

    PS: I respect you rights to disagree.

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  6. “In my view we have distorted the intent of our own Constitution and without the unanimous concurrence of the Supreme Court. ”

    NOPE The meaning of the Constitution was clear when written. It was an individual right, where individuals might be called upon to form a militia, but also had the individual right to self defense. It is no less of an individual right than the 1st amendment right, not the 3rd Amendment right, which precludes quartering of soldiers in peacetime in private homes without the owners consent.

    Yes America has changed. So, if you believe it has changed enough that we no longer need the individual right to keep and bear arms, or if you no longer believe there is much of a concern about having to quarter soldiers in private homes in peacetime, and you want to take those rights away, and if you think that is the CORRECT view TODAY, and if you believe all “right minded” people agree, then should be real easy to get 2/3 vote in the House and Senate to amend the Constitution, and to get 38 states to concur.

    Obviously, you don’t believe Americans are ready to give up that individual right, so, you are not willing to subject it to the amendment process – but instead, hope to see a change in the majority of the Supreme Court so that the individual right might be taken away… even as we see the Supreme Court interpret the 14th Amendment and 5th Amendment to grant new rights to individuals.

    Pretty short sighted if you ask me… which is why it was added as an Amendment to the Constitution, so that it would be difficult to remove it and only where there consensus of a super majority – not a bare majority of Democrats, Republicans or a 5 – 4 decision by the Supreme Court.

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    • Actually I would like to see a national referendum on the question; non binding of course, but to get a sense of the people. If your interpretation is correct, I cannot see what the 2nd amendment was written as it was. Why was it necessary to justify the right in a specific way? Why were the militia words needed if they were not relevant?

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      • But the first phase was
        Not a justification, nor was it the sole reason for the individual right, nor was it limiting the right to militia (nor for any other reason), just like the first, fourth, fifth , eighth and other individual rights. Else, if the right to bear arms was limited to a militia, there would be no need for the amendment, because of the presence of the tenth amendment.

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      • Or it could have anticipated calling the militia into federal service in view of the fact there was no effective federal armed force at the time. I sure wish we could ask Madison.

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