Wednesday, March 27, 2013

Why the Supreme Court Believes the Second Amendment Exists

Living in the Nation's Capitol, I meet many interesting people  Some of these people are actually involved in making the laws that govern us.  Keep in mind that law can be made by all three branches of government, whether the law is a bill passed by Congress and signed by the President, a regulation enacted by a regulatory agency, or a legal opinion issued by a Court.

I had the pleasure of discussing the Second Amendment with one of these people recently and was very surprised at what I heard.  This person was under the impression that the right of self-defense and the right to hunt were the purposes for which the Second Amendment was included in the Bill of Rights.  The defense against tyranny was only a minor reason stated by a few of the founding fathers.  He said that the historical context was that in England, since only the wealthy were permitted to hunt, only the wealthy needed firearms.  Therefore, there was a ban on firearms to the people.  Keep in mind that England was a monarchy at the time.  You could be killed if you were caught poaching any game animal from anywhere, because all game animals were property of the Crown.  This also left most people defenseless to the criminals who did not care that having a firearm was against the law.  So, the government of England at the time was not a government of the people and the people had no way to overthrow the government that denied the people the tools to feed and defend themselves.

I hope you see the irony there.  The Founding Fathers were not concerned about whether or not the people should have the right to own firearms to hunt or the right to own firearms for self-defense.  The Founding Fathers were concerned about a government that could be so oppressive that it denied people the basic rights granted to them under natural law and the people could do nothing about it.  Natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature.  In other words, by virtue of just being a human, you have certain rights, such as the right not to be murdered or the right of survival.  Our courts even recognize this in that certain acts of stealing or trespassing are excusable if done solely for the purpose of survival even if the written law does not provide such an excuse.

So I decided to go back and read the U.S. Supreme Court opinion in Heller to see if the Court addressed this issue.  This is what the Court wrote in the majority opinion:

That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The Supreme Court also stated that during the 1788 Constitutional ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.  Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.  The Supreme Court wrote “It was understood across the political spectrum that the right [to keep and bear arms] helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”

The Supreme Court also stated that it is entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The Supreme Court continued “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right was codified the Bill of Rights.”

In other words, although the Founding Fathers may have viewed having a firearm for self-defense and hunting as more important, the reason the right was codified is the Bill of Rights was for the People to have the power to overthrow the Government should the Government ever become oppressive.  To date, this has been mostly true.  If you have read my other posts, you know I believe that the Second Amendment is a dormant clause.  The use of firearms for self-defense and for hunting is something the People do every day.  The need to overthrow the Government because the constitutional order has broken down has yet to happen.

Is the Second Amendment’s existence the reason the constitutional order has not broken down?  We will find out soon enough if the Second Amendment is weakened.  I, for one, do not want to find out.  Once the People give up their firearms, how do they get them back?  They don’t.  That is why a strong Second Amendment is the 1st Line of Defense against tyranny.  Maintain the line.

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