“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.”
Let’s get real about the Second Amendment – and I’ll start by stating that I’ve owned guns since I was seven years old, and I’ve posted and blogged in support of the Second Amendment for two or three years now. I also want to make the point that the “right to keep and bear arms” is not about hunting, it’s about protecting oneself, one’s family and ones community. But if taken literally the Second Amendment guarantees my neighbor the right to keep a nuclear bomb in his basement and frankly I’d rather he didn’t, and I’m pretty sure James Madison wasn’t thinking of nuclear bombs when he introduced the Bill of Rights into Congress. So I think it’s fair to say that some modification to the Second Amendment to accommodate the modern world makes sense.
The debate about whether or not we’re safer by owning guns rages on all around us and it’s not my purpose to jump into that argument at this time; my point here is not specifically about the Second Amendment or the right to bear arms, it’s about the integrity of the Constitution, and the point is that any modification or dilution of the Second Amendment via legislation, no matter how sensible or universally acceptable the laws enacted may be, is not constitutional; and allowing unconstitutional laws to pass and stand degrades the Constitution. The only means of modifying the Second Amendment under the Constitution is via another constitutional amendment; otherwise the Second Amendment is clear, “… the right of the people to keep and bear arms shall not be infringed.” Any law making it illegal for my neighbor to keep a nuclear bomb in his basement is unconstitutional.
Originally the Amendments in the Bill of Rights (the first 10) were assumed to only apply to the central government. Each individual State government had the right to control arms, or to use tax dollars to support churches, or stifle freedom of speech, etc, unless prohibited by the respective State Constitution; but the Supreme Court has eliminated this distinction between the central government and State governments in regard to the Bill of Rights.* The Second Amendment and the rest of the Bill of Rights now apply to the State and local government entities as well as the federal government, so none can infringe on the right to bear arms – at least not constitutionally. Of course they do anyway in dozens of ways, some States require concealed weapon permits; cities outlaw carrying altogether; nuclear bombs are not allowed (I’m pretty sure); some classes of weapons in some States require background checks before purchasing – the restrictions, i.e. infringements go on and on. No matter how much sense these laws might make; no matter how much everyone agrees that we don’t want the neighbor harboring nuclear weapons, these laws are clearly contrary to the Second Amendment and should be declared unconstitutional unless and until a constitutional amendment modifies the Second Amendment.
The Framers of the Constitution recognized the need to allow for changes to it, so they provided an amendment process, but the amendment process was purposely made very difficult; the framers didn’t want changes to the Constitution taking place whimsically. One of the requirements for a Constitutional Amendment is ratification by 3/4 of the States, so no one attempts an Amendment to modify the Second Amendment because they assume that this supermajority of the States would be impossible to obtain, as it certainly would if an amendment were to seriously endanger the right to keep and bear arms, but an amendment to omit the right to keep nuclear bombs would probably fly.
If we were to make a list of all of the weapon types in the world in order of deadliness, with nuclear bombs at the top and perhaps fingernail clippers at the bottom, there must be someplace, moving society’s finger down the list, where the vast majority of us could draw a line and agree that the weapons above that line should be omitted from the arms that citizens of the United States are allowed to bear. My point here is not to define where the line should be drawn; my point is that it should be drawn by constitutional amendment, not by federal, state, or local officials or legislatures in disregard of the Constitution.
Every elected official in the United States takes an oath of office vowing to uphold the Constitution of the United States. This is important for legislators because the laws they pass are supposed to adhere to the Constitution; every bill should be scrutinized for constitutionality at every step in the process of becoming law by every legislator involved; but too many legislators in both major parties seem to ignore the Constitution and their oath, pass whatever laws suit them, and leave it to the courts to decide constitutionality. This is not as it was intended by the Framers – that’s why the oath exists. Perhaps it would be OK if the Supreme Court was able to immediately rule on every law as it passes, and on the process by which it passes, so that no unconstitutional laws went into effect; but instead they do go into effect and remain so until challenged and taken along an extremely long and expensive legal path to the Supreme Court. Legislators take this easy path, pass whatever laws they want with no regard to the Constitution, and the expensive process discourages challenge, or if a law is challenged it’s typically long after the law has accomplished the legislator’s purpose. For many legislators this disregard and even distain for the Constitution is openly declared making a mockery of their vow to uphold it, yet they are re-elected time after time. This means their constituents disdain the Constitution also, which is, of course, the real problem.
The primary purpose of the Second Amendment was to give citizens the means of protecting themselves from their government if it became despotic, and while still valid philosophically the notion of citizens in the United States taking up arms against their government is no longer practical, and certainly not desirable; but that’s all the more reason to vigilantly maintain the integrity of the document whose purpose is to prevent despotism; that document is The United States Constitution.
*See: http://thoughtofasecularconservative.blogspot.com/2012/03/constitutional-confusion-and.html
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