The Bill of Rights
The 2nd amendment has been on my mind recently. The Supreme Court is going to be hearing a case about the 2nd amendment for the first time in decades. I guess that explains it somewhat.
I had been talking with people about the 2nd amendment and was questioned by a friend regarding the details of the discussion. I realized it had been quite a while since I had done good, solid research on the subject.
To understand any legal precedent, you have to try to understand what the intent of the writer(s) was. So, I'll get into a little bit of history. Most of this was pulled from Wikipedia.
The U.S. Declaration of Independence was adopted on July 4, 1776. The Revolutionary War ran from 1775-1783. The Articles of Confederation were written in 1777 and became "finalized" in 1781. The Congress of the Confederation endorsed the plan to revise the Articles of Confederation in 1787. The U.S. Constitution was drafted in 1787 and ratified in 1788. The government began operations March 4, 1789. The Bill of Rights was initially drafted in 1789 and went into effect on December 15, 1791.
There were originally 12 proposed amendments to the Constitution (10 of which would later be ratified and know as the Bill of Rights). The first 2 proposed amendments involved the number of representatives per population (never ratified) and the pay of Senators and Representatives (ratified in 1992 as the 27th amendment (no typo)). After those first two amendments, we get what we know traditionally as the Bill of Rights.
"The idea of adding a bill of rights to the Constitution was originally controversial.
Alexander Hamilton, in
Federalist No. 84, argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." As critics of the Constitution referred to earlier political documents that had protected specific rights, Hamilton argued that the Constitution was inherently different. Unlike previous political arrangements between sovereigns and subjects, in the United States there would be no agent empowered to abridge the people's rights:
Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was "
Magna Charta", obtained by the Barons, sword in hand, from
King John.
[2]Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
[3]Essentially, Hamilton and other Federalists believed in the British system of
common law which did not define or quantify
natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the
Ninth Amendment was included." --Wikipedia article on the Bill of Rights
Again, one of the most important aspects of analyzing law is understand the intent of those who passed the law. What we see from the timeline is that those involved in the drafting of the Bill of Rights were revolutionaries and forward thinkers of their time. They universally believed in individual rights and a very limited federal government. To quote again from Wikipedia:
"Initially Madison "adamantly maintained ... that a specific bill of rights remained unnecessary because the Constitution itself was a bill of rights."
[13] Madison had three main objections to a specific bill of rights: (a) it was unnecessary, since it purported to protect against powers that the federal government had not been granted; (b) it was dangerous, since enumeration of some rights might be taken to imply the absence of other rights; and (c) at the state level, bills of rights had proven to be useless paper barriers against government powers.
[14] "
Here we see the man known as the Father of the Bill of Rights calling them unnecessary because he believed that the rights it protected weren't given to the federal government in the first place. The men who wrote the early documents of our nation were (by definition) revolutionaries. It is also clear that these men were fearful of having a federal government that wielded too much power. The belief that power rested inherently with the people is clear.
There are many arguments regarding the 2nd amendment's language. For me, the 1st amendment's guarantee that I have freedom of speech, there is freedom of religion and freedom of the press, is worded just as nebulously as the 2nd amendment's guarantee that I have the right to keep and bear arms. To quote both:
"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.
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 the first amendment we take people to mean the individual, not the state. We also broadly look at the freedoms established in the first amendment to mean that we have the right to free speech (for example). However, it does not say that people have a right to free speech. It says "Congress shall make no law...abridging the freedom of speech". It does not state that states shall make no law abridging the freedom of speech. However, we interpret the Constitution to mean that individuals have an individual right to freedom of speech. We see this text as a specific limit put on government to ensure that it does not infringe upon the already existing right. There is the assumption that that right already exists.
In the second amendment we should also take people to mean the individual, not the state. We should also broadly look at the freedoms established to mean that we have the right to keep and bear arms. While one could interpret the second as only applying to states, that would be as bad as saying that free speech doesn't apply to the individual, only that Congress can't do anything to stop it.
All other arguments stem from not interpreting the second amendment broadly enough. When I hear "the right of the People to keep and bear arms shall not be infringed" I hear that individuals have the right to own arms. Any argument about "what does the state part mean?" "what is the militia?" and "Do the arms need to be of the type typically used by the military?" are moot.
Individuals have the right to keep and bear arms. If we don't like it, we could change the Constitution. Don't misrepresent the intent of the authors to achieve that change. The founders of our nation built into our system of government a method for changing our Constitution. That method was a Constitutional amendment. We have repealed an amendment before, and we can do it again if we feel the need. However, even changing the Constitution would not eliminate the right.
I would go so far as to say that the right to keep and bear arms is not created in the Constitution...it is an inherent right that the Constitution takes special pains to protect. We could repeal that amendment, but that would only remove the special protection...it would not remove the inherent right that the Founding Fathers knew existed.
How dare we believe that we have the right to take away inherent rights with something so trivial as a Constitutional amendment.
Aloha
