More thoughts on the “2nd Amendment” issue before the Supreme Court; that’s the one that allows us to “bear arms”?
As I mentioned before, if you are going to interpret our Constitution in a constructionist way (as it was written and intended originally) you will have to know something about the issues back when it was being written.
The second amendment as written grants the right to bear arms to citizens ONLY as a regulated militia. I argued that since each state has a NATIONAL GUARD that takes the place of a State Militia, the amendment does not have any validity because it addresses something that DOES NOT EXIST ANYMORE.
In cases where the Constitution does not address a specific issue, the matter is turned over to the States since it is now NOT a federal matter but a STATE matter.
BUT when I carefully studied the debate between the Federalists (pro-Constitution) and the Anti-Federalists (against the Constitution) a big concern was the ability of the states to protect themselves from a too aggressive central government – yes that was a valid concern.
This issue was such a concern that for the Constitution to be ratified, the states demanded the inclusion of a BILL of RIGHTS into the Constitution to address those very issues.
So the 2nd Amendment’s purpose was to grant the states a means of protecting themselves from an overbearing central government. Yes, they meant to “fight” the central government if they did not like what they were imposing on the individual states – hard to believe in today’s U.S.
In those days, the citizens of each state would comprise the state militia and could be called upon to serve in times of crisis – fair enough?
But here is the problem, the Constitution granted power to the central government to “nationalize” the state militia if the need arose – see a conflict?
Our state national guards who took the place of state militias have been nationalized by the central government in the past. Remember Alabama and the school segregation stand-off with Wallace, et.al? Well the state national guard that was blocking entrance to the school was nationalized and told to stand down and desist, in effect, over-ruling the state.
So the writers at that time were obviously aware of the fact that the central government can always “trump” the state government by just “nationalizing” their militia so what did they really mean for the 2nd Amendment to do?
It specifically grants the bearing of arms to individuals ONLY as members of a militia and for the protection of the state NOT individual property or person.
As much as I try to see what others want me to see (individual’s right to bear arms); it’s just not in the Amendment – sorry!
That does NOT mean (and I again repeat) that individuals DO NOT have a RIGHT TO BEAR ARMS. The 2nd Amendment does NOT give them that right and the SUPREME COURT should say just that, excuse themselves and send the matter back to the STATE COURT who should decide the case based on the specific STATE CONSTITUTION.
Amen to that!
As I mentioned before, if you are going to interpret our Constitution in a constructionist way (as it was written and intended originally) you will have to know something about the issues back when it was being written.
The second amendment as written grants the right to bear arms to citizens ONLY as a regulated militia. I argued that since each state has a NATIONAL GUARD that takes the place of a State Militia, the amendment does not have any validity because it addresses something that DOES NOT EXIST ANYMORE.
In cases where the Constitution does not address a specific issue, the matter is turned over to the States since it is now NOT a federal matter but a STATE matter.
BUT when I carefully studied the debate between the Federalists (pro-Constitution) and the Anti-Federalists (against the Constitution) a big concern was the ability of the states to protect themselves from a too aggressive central government – yes that was a valid concern.
This issue was such a concern that for the Constitution to be ratified, the states demanded the inclusion of a BILL of RIGHTS into the Constitution to address those very issues.
So the 2nd Amendment’s purpose was to grant the states a means of protecting themselves from an overbearing central government. Yes, they meant to “fight” the central government if they did not like what they were imposing on the individual states – hard to believe in today’s U.S.
In those days, the citizens of each state would comprise the state militia and could be called upon to serve in times of crisis – fair enough?
But here is the problem, the Constitution granted power to the central government to “nationalize” the state militia if the need arose – see a conflict?
Our state national guards who took the place of state militias have been nationalized by the central government in the past. Remember Alabama and the school segregation stand-off with Wallace, et.al? Well the state national guard that was blocking entrance to the school was nationalized and told to stand down and desist, in effect, over-ruling the state.
So the writers at that time were obviously aware of the fact that the central government can always “trump” the state government by just “nationalizing” their militia so what did they really mean for the 2nd Amendment to do?
It specifically grants the bearing of arms to individuals ONLY as members of a militia and for the protection of the state NOT individual property or person.
As much as I try to see what others want me to see (individual’s right to bear arms); it’s just not in the Amendment – sorry!
That does NOT mean (and I again repeat) that individuals DO NOT have a RIGHT TO BEAR ARMS. The 2nd Amendment does NOT give them that right and the SUPREME COURT should say just that, excuse themselves and send the matter back to the STATE COURT who should decide the case based on the specific STATE CONSTITUTION.
Amen to that!
The supreme court Justices do not necessarily interpret in a "constructionist" way. They use at least 3 approaches to their interpretation.
ReplyDeleteThe constitution does not Grant the People or the states anything. It only Grants responsibilites to the government and prohibits it from doing other things. The people have natural (God given ) rights to do all things with rare exceptions and they delegate authority to the government to act on their behalf.
One of these natural rights is to protect oneself. (thus the individual right to bare arms)
What action eliminated the Militia? Yes there is a National Guard but it is not the same as the Militia (I guess one could argue it is the 'regulated" militia - but the unregulated militia still exists in law)
Congress shall make no law. Did congress make this gun band law? No
In the Heller case DC is in the exclusive legislative territory of the Federral government.
It seems to me that if congress had enacted a hand gun band in this 10 sq mile area it would be within its de jure power.
But it didn't and so you are right this case should not be heard by the supremes.