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A Matter Before the Court Copyright © 2008 Richard Sansom. Permission granted to distribute in any medium, commercial or non-commercial, provided author attribution and copyright notices remain intact. | |||
A Matter Before the Court Article II of the Bill of Rights
“A well regulated Militia, being necessary
for the security of a free state, the right
of the people to keep and bear Arms, shall
not be the infringed. “ The recent Supreme Court case, involving
the right of the city of Washington
D. C.
to outlaw the ownership of handguns
by citizens,
will apparently be decided along a
5-4 vote
against such a prohibition. The reason
suggested
at by some of the judges is that the
section
I have bolded above is the operative
one
– not the conditioning phrase that
preceded
it. To me this is simply choosing the
portion
of the Article that suits one’s desire
--
not the clear intent of the whole Article.
If one reads the main body of the Constitution,
they find in Article I the following
references
to the Militia as they relate to what
Congress
shall have the power to do: [The power to:] …provide for calling forth the Militia to
execute the laws of the …provide for organizing, arming and disciplining
the Militia… There can be little doubt as to the meaning of “militia,” in the context of the Constitution. The Militia was a body of citizens, regulated by rules established by Congress, called forth in time of need for military action. It is therefore logically understood that such men would require arms to fulfill their military duties. Further, since the Militia was necessarily composed of citizens [there then being no standing Army, as today] it was reasonable to allow citizens, who might be a part of any Militia, to own firearms. The second phrase, “the right of the people to bear Arms, shall not be infringed” was a reasonable inclusion at that time, since any locally established proscription against the ownership of arms would impede the formation and effectiveness of the Militia. Today, with the existence of the National
Guard and Reserve not to mention the
standing
armed forces, such militias no longer
exist
[nor can they], therefore the need
for such
a prescription of citizen ownership
of arms
is equally outdated. The ownership of guns has been for a very long time been viewed as a sacrosanct right and the Second Amendment [Article II] is always referenced as its legal justification. The moral, or sociological justification is usually one related to the assumed right to have the ability to defend one’s self. An often heard retort to those who eschew universal legal ownership or strict regulation of guns is: If guns are outlawed, only outlaws will have guns. While this is true, there remains the matter
of the right of cities, counties and
states,
to make laws concerning regulation
of gun
ownership. I have argued above that
the Second
Amendment is moot since its original
raison d’etre related to the maintenance of Militias, which
no longer exist. If this is the case,
then
there is no infringement of a right
that,
de facto, does not exist. If the reasoning of the Supreme Court justices
is based on “…the right of the people to bear arms,” ignoring the conditioning preceding phrase,
the basis for such reasoning must be
that
that the right of gun ownership has
an inherent
standing of necessity, even though
no such
standing is referenced anywhere in
the Constitution.
Consider what might happen were the Second Amendment to be repealed; nothing. That is, nothing until some community, city or state makes some law dealing with gun ownership. [Indeed, some communities have laws dealing with the purchase of alcohol – a far less serious matter than weaponry.] In a democratic community, such a law would be voted on and passed or not. The will of the community in a democratic society is supposedly more sacrosanct than some specific right that is not self evidently transcendent. The five Supreme Court justices who probably will side against the prohibition in Washington D. C. apparently believe that gun ownership is such a self evidently transcendent right. The rights presented in the Bill of Rights, are secular statutory rights and are not self evidently transcendent ones; there are no such rights in our Constitution. If the Supreme Court rules based their interpretation of the Second Amendment as providing the right of people to bear arms independent of any other factors or justifications, they are clearly supporting the belief in the right as one that is assumed to be self evident – or transcendent. Surely this kind of jurisprudence is not acceptable. Had the Second Amendment read: A well regulated Militia, being necessary
for the security of a free state, the
right
of the members of the well regulated
Militia
to keep and bear Arms, shall not be
the infringed.
a great deal of fuss, agony and murders could
possibly have been avoided.
Richard Sansom |
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