Understanding the Second Amendment
Chuck Klein and Robert H. Carp - 05/04/2019
It seems gun rights will always be a heatedly debated topic. And the Second Amendment will always be at the center. With references from both the anti-gunners and the pro-2Aers, it’s important to thoroughly understand what this amendment says.
AMENDMENT II
Militia and Right to Keep and Bear Arms. Ratified, 1791
The Second Amendment to the U.S. Constitution serves five functions:
- It acknowledges that the individual right to keep and bear arms is a preexisting right (a right that was in effect before the Constitution was written). Because this right is contained in the Bill of Rights and not under Articles I or IV, this amendment is not a state right but an individual right of the people (as noted in the Act of Congress, March 4, 1789).
- The amendment operates to forbid the government from “infringing” (tampering, usurping, violating) this intrinsic and inherent right. The government can set limits and define who is eligible for a license. The federal government also plays a part because of its database requirements for licensed firearms dealers.
- It acts as a reminder — an obligation — that the militia must be ever vigilant and prepared. It is obvious the framers believed it was desirable to have a militia available and ready to heed the call of need.
- It acts as an implied warning to the people to rely upon themselves, rather than the government, for protection and security.
- This amendment confirms the ability to enforce or secure the rights to life, liberty and the pursuit of happiness.
Now that we know what it does, let’s break down what it says.
A well regulated Militia,
A trained and disciplined body of able-bodied men subject to call into military service. This was only a wish because, under the Constitution (Article I, Section
, the government is powerless to maintain a standing army. Therefore, and in order to be sure that the “militia” is available should it be necessary to raise an army, it would be better for everyone if the “militia” were not only armed but carried their arms with them. In those early days, the people feared attack from foreign powers or criminals. Today, though we are not under threat of foreign invasion, per se, we are subject to assault by terrorists and criminals.
being necessary to the security of a free State,
Because the Constitution (Article I, Section 10) forbade the national government from maintaining a standing army, each state, if it believed it had the need, could have its own regulated militia on call (i.e., the National Guard).
the right of the people to keep and bear Arms,
It doesn’t say, “the right of the
state to keep and bear Arms.” It says, “the right of the
people to keep and bear Arms.” The Bill of Rights is about people’s (individual) rights, not about states’ rights — which are outlined in Articles I, III and IV. If the framers had intended the right to arms to be a state’s right, the Second Amendment would have read something like, “The right of the state to arm its militia shall not …”
Keep refers to possession. Bear means to transport (carry). Keeping arms without being able to carry them would completely destroy the purpose and utility of the arms. “Arms” denotes weapons. The types of weapons are not specified.
shall not be infringed.
Shall is mandatory. It does not mean maybe or at someone’s discretion. Infringe means to encroach upon or violate the rights of another. This clause is a mandate upon the government not to violate the people’s right to own and carry arms. Other than protection from invasion (foreign army), nowhere in the Constitution or its amendments is it guaranteed, pledged or warranted that the individual has the right to expect the government to protect him or her. Self-protection is left up to each citizen by maintaining what arms are deemed best for that purpose.
The Right of the People
The Second Amendment clause, “The right of the people,” indicates that the framers were acknowledging a right rather than granting a right. Therefore, this right “to keep and bear arms” is an inherent and intrinsic right that predates the Constitution. A preexisting right cannot ever be malum prohibitum — wrong because legislatures, courts or political correctness says it’s wrong.
Regardless of recent Supreme Court of the United States decisions supporting this legal fact, our detractors have continued to work to disparage our right. Their next assault might be to the effect that, though the right to keep and bear arms (RKBA) is an individual right, it is not absolute. They will contend that even a Supreme Court mandate is not absolute and thus is subject to restrictions.
Contrary to what some overzealous pro-gunners want to believe, the anti-gunners are correct inasmuch as the RKBA is not an absolute. If it were, we would have to allow little children and prison inmates to keep and bear arms. Therefore, some limits must be acceptable. But limits do not mean anything the legislature/courts want it to be. Bearing arms is not an absolute right under all conditions any more than free speech allows one to yell, “Fire!” in a crowded building when there is no fire. The constitutional right to bear arms does have limits, but these confines are only limited to two factors: citizenship and others’ rights
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” – Justice Louis Brandeis, 1927