2nd Amendment Rights: “shall not be infringed” Is Not an Unlimited Concept

second-amendment-cartoon-by-john-cole

It comes as no surprise that following the tragic mass shooting at the Sandy Hook elementary school last month that some gun advocates would rather fight than switch, or at  least mollify their position on perceived absolutes about the 2nd amendment.  Following the lead of the NRA’s Wayne LaPierre I read this response to a letter-to-the-editor post I submitted last month

It looks like some people are having trouble with reading comprehension. The words, “shall not be infringed,” mean not messed with ever, to infinity and beyond.    – John Harazda 

The absurdity that man-made laws are unalterable “to infinity and beyond” appears lost on Mr. Harazda.  Also lost in this concept is the belief that new technology and future societal conditions were incorporated into the original statement.  And lastly, can an infringement occur if you’re allowed one form of firearm that essentially meets the standard of the amendment while being denied ownership of other types of guns?

I understand how hard it is for some people to really study the history they claim to know so much about but a cursory review of events around the time the Constitution was being contemplated reveals that such a rigid notion of the 2nd amendment is hardly credible.

Like many others in 18th century America, William Rawe an American lawyer in Philadelphia, who in 1791 was appointed as United States district attorney in Pennsylvania, supported the right for people other than the aristocracy to own guns and viewed the second clause of the Second Amendment as a general prohibition preventing governments to  “disarm the people.”

However, Rawe did warn that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and observed, paraphrasing British jurist Sir Edward Coke, that “[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, …”  This clearly sets the stage for allowing conditions by which the government can “infringe” on who shall possess guns.

Alleging it’s the people’s right, as Jefferson remarked, to refresh “the tree of liberty … from time to time with the blood of patriots & tyrants” may sound good to disgruntled fanatics who failed to remove President Obama through our legal processes, but it is not something that can be historically justified as Rawe’s comments attest to and as George Washington’s successful attempt in August of 1794 to put down the Whiskey Rebellion substantiated.

It should be duly noted too that the Jefferson quote about the “tree of liberty” referenced Shay’s Rebellion, which occurred while the Articles of Confederation were still the law of the land.  Jefferson was safely ensconced in Paris at the time, serving as our ambassador to France, away from any threat of violence at home.  His sense of rebellion was likely more enamored than his fellow citizens as he reflected on the huge victory such actions had for the American colonists several years earlier over the great British empire.

This rebellion was not the result of government tyrants but instead was aimed at civil authorities pressured by the merchant class to cut off credit to poorer farmers and demand instead hard currency for debts owed them.   This form of crony capitalism is still with us today in ever larger contexts yet there are those who would mislead the public as they strive to reduce our representative government to a size that could be drowned in a bath tub, making room for a plutocracy that some wealthy types vigorously support.

koch brothers plutocracy

People who like to avail themselves of the “original intent” view of what the Constitution means often cite those sources that lend credibility to their claims of private ownership.   But in forming the wording to the 2nd amendment it might be note worthy from an original intent mind-set that some of our earliest political leaders viewed arming its citizens as part of a “well-regulated militia” – not separately and privately as noted in the Journal of the Senate, p. 63 in 1789

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.   SOURCE  

In just these brief historical insights we can see that there are strong indications that the words “shall not be infringed” meant something other than what we are led to believe by the anti-government crowd today.  Those people who would have us provide more deadly weapons to all citizens rather than imposing a few sane restrictions regarding types of firearms and who is eligible and qualified to possess such destructive fire power.

If we are to presume that the words in the 2nd amendment “shall not be infringed” are to be taken without qualification, then one could legitimately argue that anyone shall not be denied the right to possess such firearms, including children, mentally ill people and of course criminals.   Yet even back then it was clear that some infringements on who was to own a weapon and of what nature were spelled out.

On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred [sic] and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.    SOURCE

Notice in the parts of this statement that I emphasized how only white male citizens were eligible to be a part of a “well-regulated militia” – not women, slaves or non-citizens – and that the weapon and types of ammunition were specific.   This of course made sense back then because though the words of the 2nd amendment about their right to bear arms shall not be infringed, they were cognizant of the fact that not any and everyone qualified under this definition and that there were limitations to what was expected under this right.  This also should put to rest the silly notion by some defenders of “original intent” that simply because the Constitution doesn’t say it doesn’t mean it’s exempt.

So it seems to me that if these sensible men could infringe on certain people’s right back then as they saw fit, we ought to be allowed to do the same today.  The right to own a weapon to feel secure in your home today is not at risk of being taken away as some of the fringe element would have us believe.  Nor is the right to own a suitable firearm for such security purposes or the right to own a hunting rifle.

Beyond this however is the manufactured belief, fostered by the for-profit gun industry and their handmaidens at the National Rifle Association (NRA), that an infringement of the 2nd amendment means more than the essential components spelled out by the founding fathers.   The notion that each individual could have their own destructive arsenal lacks any credibility in the historical record.

Modern-Warfare-3-Weapons-List

By allowing easy access to such weapons through loop holes in the existing gun laws and tying the hands of law enforcement with a hyperbolic version of what the original intent of the 2nd amendment represented,  our civilized society has been falsely led to believe that if our representative government restricts some guns and their enhanced capabilities to kill more people quicker, that we are somehow canceling out, en toto, the 2nd amendment of the Constitution.  A scare tactic that has persisted too long and as a result has led to the innocent deaths of men, women and children whose own sense of freedom was cut short by those obsessed with gun ownership in this country.

Strident 2nd amendment advocates should also take note of ultra-conservative Supreme Court justice Anton Scalia’s words in the landmark court ruling of District of Columbia v Heller where he reminded people that where the “the right of the people to keep and bear Arms, shall not be infringed”, neither is it unlimited.  “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The 2nd amendment and the current issues surrounding it, in light of the explosion in assault weapons ownership and mass shootings around the country, can hardly be dispensed with such simple-minded retorts like Mr. Harazda’s above.  Such shallow and self-serving perceptions are humorously played out in this Chris Rock video.

And for the record, those gun advocates who like to give Jefferson’s “blood of patriots and tyrants” quote primacy, here’s another thought of his that has equal credibility and could well prove to be a lot less violent.

Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day.  – Thomas Jefferson in a letter to E.I. DuPont (24 April 1816).   

RELATED ARTICLE:

The Right’s Second Amendment Lies

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26 responses to “2nd Amendment Rights: “shall not be infringed” Is Not an Unlimited Concept

  1. I seem unable to understand the obsession with owning firearms in the US and why NRA and other lobbyists do not see the need for enactment of stricter gun control measures. It baffles me to say the least

    • The NRA is a industry lobbying organization….the more they say guns will be controlled the more their clients make……Americans are paranoid….have been for the last 50 years……..

    • Part of it I believe stems from our fear of being mugged. The chances however of being robbed at gunpoint are pretty slim but because some read and hear about it on the media damn near everyday they think that their number is up next.

      I don’t say this in any real disparaging sense because there are those who live in high crime areas that are more subject to this than the gun lover who lives in some high end gated community. I have lived in high crime areas compared to other areas I have also resided in and though I am familiar with firearms as a former Marine I have never felt the need to arm myself with one, much less a small arsenal, to protect me and my family.

      But that’s just me and I guess if the threat becomes a reality then I may be prone to changing my mind. But when I do it will because it actually did happen to me and not because I was motivated by hyped-up fear.

      • i harbor a great fear of being mugged, i really do, but i think if that were to happen and i had a gun, I may not have adequate time to respond with it and plus I think it would worsen my situation especially if the muggers are armed and outnumber me. I think depending on the size of my attacker[s] and whether they are armed or not try other methods of self preservation even if it means giving them what i have without a fight.

      • ” … i think if that were to happen and i had a gun, I may not have adequate time to respond with it and plus I think it would worsen my situation …”

        I agree. I suspect that when you live in certain neighborhoods or regions where crime is high and people harbor guns routinely then attackers anticipate that and are more on edge to use a gun on you before you can use one on them. I’m not certain what I would do if I were being robbed but I would hope I would give greater value to my life than I would to any material possession. Let them have it and hopefully walk away.

  2. In the era of Obama is destroying America, anything that touches upon 2nd amendment rights is seen as the beginning of the slippery slope to dictatorship by the fringe. To read comments over at right wing sites is to be scared out of your mind. They project such fears and baseless expectations and are literally ready for the “call” to mount up and march. Scary stuff.

    • “They project such fears and baseless expectations and are literally ready for the “call” to mount up and march. Scary stuff.”

      Yes, in this day and age of the blogosphere, the echo chambers of ideologues keep an errant idea rolling.

  3. It seems that we are not intelligent enough to understand that the common good of humanity changes with the evolution of our technology and the growth of our population. How sad. I don’t really care what the framers of the Constitution meant. The question is: What makes sense in today’s world? The past should be used to inform current affairs rather than to mandate them.

    • You speak to that notion that tells us which direction to head based on from where we came. The problem is when we come to fork in the road do we wound up taking one that continues on exposing new things, or do we take one that winds its way back to our starting point. There are those that have what I think is an unhealthy sense about the past and are bent on keeping things, not as they really were, but as they imagined them. A fantasy that doesn’t fit the reality.

      Appreciate your input CC.

      • I appreciate your appreciation!
        When my children were young, the question of how free they were to spend their own money was at issue (a TV was the specific target of their acquisitioning urge). I settled it by telling them that they could spend their money on anything they wished; but, their father and I would control if and how the acquisition would be used.
        Thinking about how well that worked (it worked well, indeed), I offer an alternative thought on gun controls. Let everyone buy all of the guns that they wish; but, 1) mandate that they carry liability insurance on each and every one and 2) mandate that the guns be kept in locked, controlled arsenals. Owners would be able to check out any one weapon (that they owned) at a time, and a “reasonable” amount of amunition for that weapon. Mass assault weapons could be checked out only in the event of armed invasion by a foreign power. Who runs such an arsenal? Brinks? The National Guard of each State/Commonwealth?

      • You make some excellent points CC. I especially like the idea of gun owners carrying liability insurance. As an add on to your #2 suggestion I would have a law in place that would prosecute people with a jail term (one-year minimum) or a very heavy fine if guns they owned were used in a crime as a result of poor security measures on the part of the gun owner.

      • I was sure I had heard that idea before but just wanted to acknowledge you for raising it. I too am a frequent follower of Ronni’s TGB blog. It’s one read I look forward each day, or at least on those days when she is able to publish something

  4. hmmmm….we all have the right to drink a beer..but that is regulated. You have a right to operate a motor vehicle, unless you lose that right, and that is regulated.. Some gun regulation is needed. OK. the second ammendment folks want to bear arms…. let’s regulate the bullets…what kind you can buy, who can buy, how much you can buy…..Good hunters and gun enthusiasts do not waste ammunition…there should be no problem. And I say strict penalties for abusers …. empty the jails of pot smokers and fill the space with gun violators. Of course, though, a couple of Gay guys getting married is a much bigger threat to life and liberty….and the whole country would be wrecked, wrecked I tell you, if women had easy access to birth control!. And for God’s sake….when are we gonna do something about those evil and dangerous young girls who knock on doors selling those artery choking cookies!? And speaking of knocking on doors! When are we gonna regulate those damned Jehovah’s handy out those stupid pamphlets? How many trees died for those itsy bitsy pieces of paper? and the Mormons! Ha! they are also at the door all the damn time….shhesh…wait a minute…. AI guess I do need a gun to defend my door! The water balloons do not seem to have worked!

    • ” And for God’s sake….when are we gonna do something about those evil and dangerous young girls who knock on doors selling those artery choking cookies!?

      I’ve never been a fan of any of their cookies. Give me a Famous Amos chocolate chip cookie every time with a cold glass of cow juice.

  5. Well written post, you give a lot to digest and think about. Even though you would consider me on the opposing side of the debate, I think we have a lot of common ground.

    I was a little disappointed with your comments, you come across as a ignorant member of the lunatic left. I don’t believe that is true, but that is the perception you are putting out there to readers.

    But with that said I was commenting to get your thought on a headline story from today: “Biden: Obama Considering ‘Executive Order’ to Deal With Guns” (http://www.weeklystandard.com/blogs/biden-obama-might-use-executive-order-deal-guns_694984.html)

    Does it worry you at all that any President believes they can use executive orders to infringe on any constitutional right?

    Do I think President Obama wants to become a dictator? No. Am I concerned with one president after another building up the authority of the executive branch and weakening the legislative? Yes.

    If the second amendment is outdated then we need to amend it, but until then it is clear that our right to own ANY firearm can not be infringed on by the federal government. Does this need to be changed? Maybe. But until it does it is the supreme law of the land, the constitution over powers any act of congress.

    Thank you for your time.

    • “I was a little disappointed with your comments, you come across as a ignorant member of the lunatic left.”

      Really? A “well written post” by an “ignorant member of the lunatic left”? Are you aware of what an oxymoron is? Do lunatics really write well? Tell me though, if you would. What comment of mine led you to believe I might be an “ignorant member of the lunatic left”?

      “Does it worry you at all that any President believes they can use executive orders to infringe on any constitutional right?”

      Yes it does and it did when Bush II used his position as president to invade Iraq and violated citizen privacy rights. That knife cuts both ways. Let’s not jump to conclusions either. Biden didn’t say that Obama would take executive action but that he was considering some use of it.

      As one who favors some sane gun control measures I am hoping we can have some bi-partisan legislation from Congress. But let’s be clear here. There is now a majority of Americans that favor some sensible gun control measures. If the GOP holds this up as a favor to the NRA then don’t you have a problem with a special interest group effecting our representative government?

      “But until it does it is the supreme law of the land, the constitution over powers any act of congress.”

      I think a rational argument could be made that a personal, private arsenal ownership of guns is not inherent in the 2nd constitution. You can still own a sensible weapon to feel secure in your home while prohibiting the purchase of other guns without violating the intent of the 2nd amendment

      Also, keep your eyes on my blog. Tomorrow or Friday I will post a piece about how weak I think the gun advocate meme is that declares, “Guns don’t kill people. People do”.

    • You must have missed the part where I said ” I don’t believe that is true”. At this time I don’t think your a lunatic, just stating that some of your comments could make you look that way.

      I am a little disappointed with your “blame Bush” tactics when talking about the actions of this president and how it impacts the legacy of the office. I do agree that Bush over used executive powers, as did most every president the last 120 years or so, so I hope to hear more from liberty loving progressives like yourself about how this president is over stepping his powers.

      “I think a rational argument could be made”, buy who’s standard? I think it is completely rational for a private individual, with proper training and back ground check, to own up to 100 assault weapons. As long as they are purchased legally and the owner does not use them for criminal activities. I would bet you would disagree, but that is why we have a constitution. If our society agrees with you, then we need to amend the constitution. Not declare an executive order or pass some legislation with a simple majority. This is a serious matter and needs to be handled slowly and with rational minds (which are hard to find in Washington).

      I do believe we need some measure of gun control, and I think we have very good laws to make sure most lunatics do not get their hands on guns LEGALLY. Now we need to see how to keep the hands out of those who get them illegally, but that is not what I am hearing from congress.

      I get nervous when politicians try to take advantage of a crisis or tragedy to just pass something. We need to take our time and do it right, future generations deserve that at least that much from us.

      • ”At this time I don’t think your a lunatic, just stating that some of your comments could make you look that way.”

        Well thanks FLP but I’m sure most of those people who might perceive me as a lunatic might also have some extreme opposing views. Like the right-wing radical Lee Atwater used to say, “perception is reality”.

        ”I am a little disappointed with your “blame Bush” tactics when talking about the actions of this president and how it impacts the legacy of the office.”

        A lot of people who voted for this guy usually have that reaction. It might have been better had you raised the issue as an “executive problem”, one that “most every president the last 120 years or so” is guilty of. Then I wouldn’t have perceived your comments being biased toward this specific President

        ”I hope to hear more from liberty loving progressives like yourself about how this president is over stepping his powers.”

        You will and I have if you have followed my post for any length of time. I am sorely disappointed at how this president has accelerated the practices of torture, sustaining imprisonment at GITMO, drone use and privacy violations started by that guy you don’t like me to blame. I have stated my objectives numerous times in conjunction with letter writing campaigns with other grass roots organizations not to mention numerous written protests by myself made directly to the White House. I will continue to do this and plan on writing a specific post regarding his deadly use of drones in the not so distant future.

        What I find odd is that those who are ready to criticize this president for his use of “executive privilege” are silent about those specific acts his predecessor engaged in. Why do you think that is?

        “I think a rational argument could be made”, buy [sic] who’s standard? I think it is completely rational for a private individual, with proper training and back ground check, to own up to 100 assault weapons. As long as they are purchased legally and the owner does not use them for criminal activities.”

        Perhaps but I find it a little too “Ruby Ridge” minded to purchase that many assault weapons and I have a hard time finding such people rational, though you may not. The fact that someone bought them legally and was properly trained doesn’t mean they automatically have no intention of using them illegally. Your last standard that requires them to “not use them for criminal activities” may be an action that would have to happen first before we could cite them on it and then of course it would be too late.

        Perhaps one could see someone collecting this many firearms mainly as a collector to simply put them on display. But what happens if he/she doesn’t properly secure them and they get in the hands of someone who could use them for criminal activities? Would you be opposed to imprison or seriously fine someone for such lax behavior in order to hold them accountable and prevent potential violence to innocent people? After all, we’re not talking about a coin collection here.

        ”I would bet you would disagree, but that is why we have a constitution. If our society agrees with you, then we need to amend the constitution.”

        I don’t think you could make the case that an individual’s 2nd amendment rights would be violated if they weren’t allowed to buy any and all weapons they set their sights on. I think Anton Scalia made that very point in his majority opinion in the District of Columbia v. Heller case.

        ”Not declare an executive order or pass some legislation with a simple majority. This is a serious matter and needs to be handled slowly and with rational minds”

        While this sounds all good and well FLP it ignores the reality that this is an issue that’s been addressed for decades and any other attempts at handling it slowly is simply a delaying tactic by strident 2nd amendment zealots, IMO.

        ”I do believe we need some measure of gun control, and I think we have very good laws to make sure most lunatics do not get their hands on guns LEGALLY. Now we need to see how to keep the hands out of those who get them illegally, but that is not what I am hearing from congress.”

        Now see this is what amazes me. People who say we have adequate laws to keep guns of any kind out of the hands of dangerous people simply ignore the big old loophole that currently exists and is supported by the NRA with the gun show exemption. 40% of guns are sold at these events and yet sellers are not required to do background checks. Now, if you were set to do some damage and had a criminal or mental health record, where do you think you are more likely to be able to purchase the weapon(s) of your choice?

        ”I get nervous when politicians try to take advantage of a crisis or tragedy to just pass something. We need to take our time and do it right, future generations deserve that at least that much from us.”

        We are that “future generations” FLP. People like you were making statements like this back in the 1990’s. It takes these crises and tragedies to shake people out of their inactions. Sorry if that makes you nervous but I would rather be nervous than dead and dead is what 26 people got in Newtown, Connecticut last month from such inaction

      • Just came across this article, thought it would interest you: http://theweek.com/bullpen/column/238269/gun-control-wont-work

        I think the author makes a clear statement at the end that encapsulates what I tried to say:

        “Gun control might make some feel better, but it won’t prevent the next horrible tragedy. The only question is whether it would a) leave people to conclude gun control simply doesn’t work or b) leave them to conclude they just didn’t go far enough.

        The former scenario is why liberals might want to think twice. The latter is why conservatives worry that even “common sense” gun control might, in fact, be a slippery slope. “

      • I think the only people who feel better about reading something like this are the people who are unwilling to take the necessary steps to prevent the next horrible tragedy. There is no doubt that with 300 million weapons in the hands of various people in this country today that the task at hand seems insurmountable. There had to be not just a few who felt like this centuries ago when some guy said let’s build a 60 story pyramid where it took over 2,000,000 limestone blocks averaging about 2 1/2 tons each to build just one pyramid in Egypt. And at a time when there were no machines, just hand tools.

        The other fallacy with this reasoning is that gun control measures will not prevent any future tragedies like that at Sandy Hook. We don’t know that for sure but we can safely assess, based on how gun control measures in places like Great Britain, Australia and Japan have significantly reduced such horrible tragedies that there should be an equal drop in them here.

        For every action there is a reaction and they are not always swift. Kind of like how we’re experiencing the constant increase in global warming due to man’s continued of fossil fuels. We were aware back in the 1970’s that increased CO2 in our climate was warming the planet and that that C02 increase was not natural but was instead attributed to the sources of energy we used to run our factories , heat our homes and power our vehicles and machinery. It’s taken all these years to see the effect of that in the form of severe climate change where our oceans are becoming more acidic killing off marine life, glaciers are melting and causing sea levels to rise and more and more regions suffering from desertification. And if we were to transition all of our energy sources from fossil fuels to renewable clean energy sources today, we would still suffer the impacts of man-made CO2 for the next 30-50 years. These changes are a result of man’s inaction.

        We have also recently discovered that by removing lead from paint and other products we have seen a reduction in violent behavior, some which lead to killing other people. This information has just now become available to us from an investigative report exposing “studies between cities, states and nations show that the rise and fall in crime follows, with a roughly 20-year lag, the rise and fall in the exposure of infants to trace quantities of lead.”

        And more in line with the subject matter at hand is another study from the Violence Prevention Research Program at the University of California at Davis School of Medicine showing that “During the 10-year federal ban on assault weapons, the percentage of firearms equipped with high-capacity magazines seized by police agencies in Virginia dropped, only to rise sharply once the restrictions were lifted in 2004, according to an analysis by The Washington Post.”

        For every action there is a reaction. Sometimes though the time frame isn’t always to our liking but with enough encouragement from the public some measures of gun control could indeed prevent a future tragedy where kids and adults are NOT killed from a lunatic with an assault rifle and ten magazines with 30 rounds each strapped around his chest.

        I’m on the side of that positive effort FLP. Where are you?

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