Opinion by Alan J. Chwick
Many read the U.S. Second Amendment (2A), but the filter/lens used is 21st-century, and few understand 18th-century legal syntax.
We know that the 2A to the U.S. Constitution, as ratified in the year of our Lord 1791, is a subject of both historical reverence and contemporary debate. The amendment states:
“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.”
Penned in the late eighteenth century, the 2A requires a proper 18th-century explanation to fully comprehend its implications, particularly for today’s modern scholars. I will explore this amendment using language and understanding, befitting the era of its creation but explained in a manner accessible to us modern, common people.
At its core, the amendment consists of two clauses: a prefatory clause (“A well regulated Militia, being necessary to the security of a free State”) and an operative clause (“the right of the people to keep and bear Arms, shall not be infringed”).
A prefatory clause provides the rationale or context for the right, and in the eighteenth century, the term “militia” was not confined to a formal military body but encompassed all able-bodied citizens capable of bearing arms for defense. This was seen as crucial for maintaining the liberty of the state against potential tyranny, either from within or without.
The operative clause explicitly grants the people the right to “keep and bear Arms.” As we understand even today, the verb “to keep” implies possession, while “to bear” suggests the carrying or use of arms, which in the context of the time primarily meant firearms but also extended to other weapons known or unknown necessary for defense.
To grasp the Second Amendment’s intent, one must consider the colonial experience and the philosophical underpinnings of the time:
In the years leading to the American Revolution, the British disarmament of colonial militias, i.e. the colonists, was seen as an attempt to subjugate the colonies. The right to bear arms was thus viewed as essential for securing individual and collective liberties.
Enlightenment thinkers like John Locke argued for natural rights, including the right to self-defense. This philosophy was deeply ingrained in the American mind, influencing the Framers of the Constitution to protect such rights against all governmental overreach.
In the early republic, the amendment was wrongly generally understood in light of state militias. Cases like U.S. v. Miller (1939) wrongly linked the right to bear arms with the military utility of the weapon in question, suggesting that only arms with a reasonable relationship to the preservation or efficiency of a well-regulated militia were protected.
However, the landmark case of District of Columbia v. Heller (2008) expanded this interpretation, with the Supreme Court ruling that the Second Amendment guarantees an individual right to possess firearms for traditionally lawful purposes, such as self-defense within the home. This decision was followed by McDonald v. City of Chicago (2010), which extended this individual right to the states, and the New York State Rifle & Pistol Association, Inc. v. Bruen, (2022), further extended the right to possess arms.
The Term “Shall Not Be Infringed” To Some Is Contentious. All Hands OFF!
While it suggests protection against all undue regulation, the exact scope of permissible regulation has been debated, leading to various laws on weapon types, background checks, and more unconstitutional legal jockeying. This contention should not exist! “Shall not be infringed,” per our Founders, is simple, plain language aimed at the entire public at large. This is not like the First Amendment’s “Congress shall make no law,” which was aimed at Congress only and which needed the 14th Amendment to apply to the state governments.
Understanding the Second Amendment involves recognizing:
- Historical Context: The amendment was a response to both British governance and the philosophical belief in natural rights.
- Dual Nature of the Right: It involves both an individual aspect for self-defense and a collective aspect for the security of the state.
- Legal Evolution: The ‘interpretation’ of this right has evolved, reflecting changes in society, technology, and judicial philosophy, but its meaning has NOT changed.
- Ongoing Discussion: The balance between rights and responsibilities, safety, and freedom remains a live issue, necessitating an informed civic engagement.
It’s important to remember that the 2A is rooted in the eighteenth century’s lexicon and legal thought, thus encouraging a nuanced appreciation of this pivotal constitutional right. If written today, in the 21st century, with modern language and a more contemporary legal perspective, it would probably be:
“Everyone has the right to own and all carry weapons, and this right is not to be infringed. It is understood that having the ability to protect oneself and maintain security is important to the well-being of the country.”
This modern version simplifies the language and tries to reflect a more current legal approach, which focuses more on individual rights. But, our Founders wrote the 2A in terms of their time which was well understood, even by those who could not read.
Live Inventory Price Checker
| Arsenal 7.62x39mm AK Rifle with 16" Barrel, Polymer Stock, Black - SAM7R62 | Palmetto State Armory | $ 2032.99 $ 1830.99 | ||
 |
Arsenal 7.62x39mm AK Rifle with 16" Barrel, Polymer Stock, Black - SAM7R62 | Palmetto State Armory | $ 2404.99 $ 2077.99 | |
| Zastava 7.62x39mm AK Rifle with 16.5" Barrel, Magpul Zhukov Stock, Black - ZR7762XR | Palmetto State Armory | $ 2028.99 $ 1500.99 | ||
 |
Zastava 7.62x39mm AK Rifle with 16.5" Barrel, Magpul Zhukov Stock, Black - ZR7762XR | Palmetto State Armory | $ 2028.99 $ 1500.99 |
References:
- U.S. Constitution – Second Amendment: The very text of the amendment, as found in the National Archives.
- U.S. v. Miller, 307 U.S. 174 (1939): This case provides an early judicial interpretation linking arms to militia use.
- District of Columbia v. Heller, 554 U.S. 570 (2008): A modern reinterpretation affirming individual rights.
- McDonald v. City of Chicago, 561 U.S. 742 (2010): Extending the Heller ruling to state laws.
- New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): Further extended the Second Amendment.
- The Federalist Papers, No. 29 and No. 46: Writings by Madison and Hamilton on the necessity of an armed citizenry for a free state.
- John Locke, Second Treatise of Government, Chapter III: On the state of nature and self-defense rights.
- Joyce Lee Malcolm, “To Keep and Bear Arms: The Origins of an Anglo-American Right”: Historical analysis of the right to bear arms.
- Saul Cornell’s “A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America” provides insight into the amendment’s original intent.
The Historical Record is the Correct Way to Understand the Right to Keep and Bear Arms
About the author: Alan J. Chwick
Alan J. Chwick, A.S., B.S., FL/NY/SC Paralegal is known for his involvement in legal articles usually related to firearm regulations and for his contributions to discussions on gun rights. Retired Managing Coach of the Freeport NY Junior Marksmanship Club. Escaped New York State to South Carolina and is an SC FFL & Gunsmith (Everything22andMore.com).
AJChwick@iNCNF.org | TWITTER & TRUTH: @iNCNF
from https://ift.tt/C3XVnyx
via IFTTT
No comments:
Post a Comment