The three branches of government (executive, legislative, and judiciary) act as check and balance to one another. Though unwritten, the right to bear arms hands check and balance power to citizens. Without the Second Amendment, the government power is unrestrainable by the population.
Our Founding Fathers understood the risks and importance of armed citizens in a free society. On January 30, 1787, Thomas Jefferson wrote a letter to James Madison. Jefferson stated, “I prefer dangerous freedom over peaceful slavery.”
Amendment II
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.
27 Complicated Words
The right to bear arms, like other rights, is not absolute. Court cases and regulations over the past two and half centuries narrow and define the limitations of the Second Amendment. Limitations exist based on age (children), felony convictions, mental illness, restricted locations, and on the type of gun. The most notable case on this subject is District of Columbia v. Heller. In the landmark Heller decision, Justice Scalia split the Amendment into two clauses: “prefatory clause” and “operative clause.”
Prefatory Clause
A prefatory clause is an introductory stipulation which introduces a purpose but does not limit or expand the operative clause. The prefatory clause, in this case, is, “A well regulated Militia, being necessary to the security of a free State.” Supreme Court Justice Scalia determined that militia cannot be limited to those serving in the military. This opinion based on, at the time of drafting, “the “militia” comprised all males physically capable of acting in concert for the common defense.” Today, this means anyone who could be called in for the defense of the country.
Scalia also stated that the prefatory clause does not limit the extent of the operative clause. This determination resulted from the review of language within the Constitution and at the time of adoption. Additionally, Scalia considered the historical background of the Amendment’s creation and similar provisions from period state Constitutions. In consideration of the early definition of “militia” specifying “men,” the SCOTUS referenced pre- and post- Civil War Commentaries. With split opinions on the Supreme Court panel, Scalia referenced U.S. v. Miller as a Stare Decisis for this case. U.S. v. Miller
Stare Decisis – Latin for “to stand by things decided.”
In other words, using previous court determinations to back current decisions.
Operative Clause
An operative clause works as the functional stipulation. In this case, the operative clause, is, “the right of the people to keep and bear Arms, shall not be infringed.” A state-organized militia, like the present day National Guard, neglects the objective of resisting a tyrannical government because a state-organized militia could be limited to those compliant to the state. A people’s militia, however, does achieve the objective of the prefatory clause.
The Right Of The People
In the Constitution, “the people” is used three times. The Supreme court, in Heller, determined all three uses unambiguously refer to individual rights. Therefore, the right was not “collective” nor one “that may be exercised only through participation in some corporate body.”
Also in the Heller ruling, Scalia noted, “at the time of the Second Amendment’s ratification (militia) was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”
Pre- and post- Civil War commentaries reviewed in conjunction with the 14th Amendment clarified the meaning of “the people.” Before the war, “the people” projected a limited definition. However, after the Civil War, the 14th Amendment solidified that all individuals are granted the same rights.
America citizens equate to the “people’s militia.” In essence, all able-bodied, law-abiding, adult citizens are the militia.
To Keep And Bear Arms
In U.S. v. Miller (1939), the decision clarified that Constitutionally speaking, militia consisted of all able-bodied men. Those men, when called upon, expected to appear bearing self- supplied arms in common use (at the respective time). Another determination in the Miller case concluded that the right to keep and bear arms included all lawful, private purposes, such as personal protection.
The Heller decision noted the language “to keep arms” represented possessing arms, whether militiamen or anyone else. The ruling clarified that the weapons included the ones chosen overwhelmingly or most popularly by Americans at a given time.
Court rulings define self-defense as the Second Amendment’s core lawful purpose. Thus, permitting “citizens to repel force by force.” Firearms provide comfort by equalizing opponents, human or animal. Hunting and recreational sports shooting are also legitimate legal purposes.
Shall Not Be Infringed
The Declaration of Independence states that all men are “created equal” and endowed with “inalienable rights.” Inalienable rights cannot be created or denied. Considerate of this language in Heller, the Supreme Court noted that the Second Amendment “codified a pre-existing right.”
The words “Shall not be infringed” pay homage to the pre-existing rights of all Englishmen in England’s Bill of Rights. The document from 1689 made it clear that keeping and bearing arms included personal defense. A concept universally understood and extended to Americans.
2A – A Right Misunderstood
In a post-Revolution America, both citizens and policymakers shared concern over a large centralized government. Arguments for and against a free-standing national military during peacetime existed. England’s history of using the military to oppress the populace created a need for a citizen check and balance system. In early America, militias consisted of groups of men who banded together to protect their communities, towns, and states. The militias proved to be insufficient for complete national protection, but valuable to states and communities. Essentially, the militia is a volunteer group ready to assist when needed. Currently, the US Code specifies the National Guard as our militia.
No official ruling exists on the full requirements needed to fulfill the original intent of the Second Amendment. Due to scope, District of Columbia v. Heller left this open to further interpretation, the Supreme Court opinion states: “It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.” The ruling goes on to say, “the fact that modern developments [in modern weaponry] have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
Fun Fact
James Madison deliberately penned the words “necessary to the security of a Free state.” The recent memory of King George’s despotism still struck fear in the minds of early Americans. Understood by all, government unchecked resulted in oppression. A tyrannical government disarms citizens to suppress political opposition. Eight words of 27 clarify the importance of resisting tyranny, domestic or foreign.
Modern Day Challenges
Firearm technology today does not compare to the muskets, bayonets, and rifles in our founding days. Due to this, the Second Amendment remains a hot topic of debate.
Blaming Weapons Not People
Inanimate objects will not magically attack anyone, but often receive the blame in the event of mass shootings. Politicians, the media, and other opposing individuals quickly blame guns after tragic events in an effort to pass gun reform. As a result, millions of law-abiding citizens receive unfair criticism and blame for the act(s) of individuals. The opposition demonizes the law-abiding gun owners who defend their right to keep and bear arms.
Estimates from the Pew Research Center show that 37% of American households own guns. The research concludes between 270 million and 330 million guns exist in these homes. Blaming the weapon, not the criminal an any shooting case alienates and divides. The CDC research suggests that far more lives are saved by guns each year with numbers in the hundreds of thousands to millions and beyond. Finding the exact number is impossible because these situations often go unreported since no actual crime occurred. Most crimes result from an opportunity. Possessing a gun or giving the impression of possession is enough to deter a would-be criminal.
Gun Control Laws
Criminals do not follow laws, hence why they are criminals. Gun control laws burden law-abiding citizens, especially those in low-income situations, far more than the individuals who they mean to stop. Regulations drive up costs in all stages of production and the sales process, essentially acting as a hidden tax. Gun safety is important and valuable, but the courses are not free and may prevent some individuals from obtaining a gun they need for personal safety. In many places, the existing gun control laws excessively delay and prevent individuals from obtaining firearms who need them for protection. Perhaps punishments should be more severe for those who illegally obtain firearms.
Often, the gun control laws limit the Second Amendment in public areas with preference over protecting private property. However, the majority of violent crimes occur in public areas. With no verbiage to back it, legislature exists that confines the right to keep and bear arms to the home. Why would this differ from the First Amendment?
Personal Beliefs
Technological advancements in weaponry allow for a debate about which weapons fall under Second Amendment protection. As mentioned earlier, Supreme Court decisions ruled in favor of the machines in popular, common use at the time. Despite this, some states created legislature banning the most commonly used arms lumping them in under the broad category of “assault weapons.”
America freed of obvious tyranny long before anyone reading this was born. However, taking freedom for granted does not prevent future tyranny or detract from our right to self-preservation. A tyrannical government, foreign or domestic, could take over a disarmed populace quite easily. At the current moment, the armed citizenry of the United States’ form the most massive and most potent standing army on earth.
Importance of the Right to Bear Arms
To this day, the inalienable right to gun ownership acts as a check and balance to a tyrannical government, domestic and foreign. The Second Amendment solidifies the right to self-preservation and self-defense while silently defending our free speech and other rights. Millions of Americans choose not to own guns, but the majority of those who do accept their responsibility to do what is right. Hunters provide food for their families. Sports shooters compete on an international level. Others obtain them for historical or enthusiast collections. While the rest just enjoy the peace of mind and recreational uses, while appreciating the reduced chance of becoming a victim. If nothing else, look back at our history and understand why our Founding Fathers included these 27 words.
We would love to hear from you. What limitations on the gun ownership do you believe should exist? Let us know what you learned from this article in the comments below.
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