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Rights Protected by the Second Amendment

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Rights Protected by the Second Amendment

Introduction

From the enactment of the Bill of Rights, the Second Amendment guarantees every law-abiding adult the right to keep and bear arms. Through numerous court cases, the Second Amendment has long been the subject of many debates. In a decision, the Supreme Court overturned the 32-year-old ban on handguns in the nation’s capital. The significance of the 5-4 landmark ruling seemed even greater because since the 1791 ratification of the law, there was no conclusive interpretation.

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The ruling did away with the requirement by the capital, the place with the strictest rules on weaponry, that firearms either remain disassembled when not in use or have locks. The view taken by the technocrats involved was that to Americans’s the handgun is the preferred self-defense weapon, partly because it allowed users a chance to point the gun at their assailants while simultaneously dialing the police with other hand (The Oyez Project, 2008).

This case poignantly delivers the beliefs of the American people all the way from the English Citizen Army, through the Tudor and Stuart periods to the present. The federalist and anti-federalist clash importantly makes the US citizens aware of what is prohibited or permitted by the application of the Second Amendment. The nation’s Founding Fathers had visions for the country and these were in tune with freedom rights and a need to give America a unique identity.

This paper points out these facts in a bid to elucidate what the Amendment permits, and their relevant contexts. The historical debate surrounding the Second Amendment is whether the right is applicable to the state bodies, empowering every state to maintain military forces or whether it recognizes citizens’ rights to keep as well as bear arms (Schweitzer 2008).

The Second Amendment

As per the United States constitution, the amendment in question provides that: “A well regulated Militia, being necessary to the security of Free State, the right of people to keep and bear Arms shall not be infringed. (Cook, 2002)” The interpretation of this text gives, in the eyes of the ordinary voters, hints at a literal meaning of the phrases and words used, as opposed to the application of any legal jargon. Consequently, there is a clear divide between the two major interpretations. Petitioners and unorthodox justices in the modern-day believe that the subject of amendment only protects citizens’ rights not only to possess but also to carry firearms in relation to militia service.

On the other hand, it may protect individuals’ rights to possess firearms, without connection to service in any militia, using the arms for purposes that are traditionally lawful, for example, self-defense in the confines of one’s home. The amendment in question naturally falls into two sections: the prefatory and operative clauses. The preceding statement is not grammatically limiting; it primarily poses a purpose. The amendment might as well read, “As well regulated militias are of necessity to a Free State’s security, the people’s right to keep and bear Arms shall not be infringed (Cook 2002)”

The elements of the operative clause are:

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Right of the people

The people’ points to a class of individuals forming part of the national community or those that have created a significant connection with the country, for consideration as part of the community. The rights protected by this amendment indiscriminately apply to all Americans (John 2003).

Keep and bear Arms

Which refers to the rights substances. According to the Second Amendment, ‘keep Arms’ translates to ‘have weapons’. Documentary searches unearth that the phrase was not commonplace, but the few coherent instances favor the description as a person’s right not connected to militia service. The works of Blackstone depict this. According to him, Roman Catholics of the Church of England fold who did not attend mass suffered a number of penalties, a distinct one being having the right to keep arms domestically waived (District of Columbia v. Heller, 554 U.S. p. 12, 2008).

The phrase ‘to bear’ simply means to carry. In connection with the term ‘arms’, the word meaning focuses on a specific purpose, confrontation. To consider Muscarello v. the United States, carrying, bearing, and wearing weapons in pockets, garments, or on the person is related to being armed, ready for defensive or offensive action in cases of disagreement with other people. Analyzing the two clauses from a historical background, they guarantee individuals the right to possess as well as carry weapons in cases of confrontation. The general perception is that the Second Amendment, just like the First and the Fourth, codified a preexistent right. Nevertheless, logic draws a clear relationship between intentions and commands (Schmidt, 2007).

The prefatory clause also has two elements:

Well-Regulated Militia

According to congress, militia indiscriminately refers to white able-bodied male citizens over the age of eighteen, but below fifty. The decision to use whites is an indication of Congress’s plenary authority with respect to organizing militia. Following the necessary amendments, militia laws finally excluded free blacks. The modern-day setting may even include women within the stated age bracket. This description is wider than that adopted by petitioners, whose interpretation, though consistent with Article I, only recognizes organized militia. This revision, according to this article, assumes the pre-existence of the armed force, not like navies and army, bodies that Congress has the legal authority to create. With respect to the militia, Congress has no power to call the militia forth but may organize it (U.S. Constitution article, I, §8 clauses12-16).

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Security of Free State

These words describe the security of a free policy, which is different from the security of its individual states. The importance of a militia comes into the dispute when stifling revolutions and keeping away attacks. Moreover, militias negate the need for huge standing armies. The sentiments, coupled with the traditions of the people condemn arms, labeling them dangerous to civil liberties. Moreover, their preparation (the people) for the defense of primary institutions using arms their preservative. The third argument in favor of militias is that when a nation’s able-bodied men are properly trained in dealing with arms, then efficiently organized, the consequence is a higher ability to oppose tyranny. The state’s right view of the Second Amendment, in comparison to the individual rights view, guarantees a wider range of weaponry.

This applies to states themselves and to state-authorized persons. Looking at things from the Miller angle, weapons qualify for protection under the Second Amendment only if they may be potentially used by militia. Once qualification is granted, the weapon is usable privately for self defence and hunting. (Cornell 2006).

The Amendment: Interpretations and Applications

The central element with respect to the rights allied to the Second Amendment is the right to self-defense. Plainly stated, the handgun ban prohibits a class of weapons that the American public favors overwhelmingly for a lawful purpose. In addition to that, the provision covers civilians’ homes, places where defense, not only of self but also of family and property, is deficient. This ban miserably fails as far as constitutional muster goes (Kates, Jr., Don B. November 1983).

Petitioners qualify the ban as permissible as long as the deployment and ownership of other arms are given the green light. As noted earlier, the American public finds the handgun the ultimate self-defense firearm. In addition to the reasons already mentioned, this weapon is easily kept in strategic locations for ready access in emergencies, it cannot be wrestled away or redirected by attackers and it is usable by individuals with insufficient upper body strength to handle larger weapons like long guns. The argument that presents itself here is that blanket prohibition of handgun use is unacceptable. All this makes the reversal of the ban that much more meaningful. The fact that intruders do not whether a home owner has a gun makes them think twice about stealing. (Halbrook, 1984)

It is necessary to address the Washington’s requirement that firearms remain inoperable perpetually. This definitely renders them useless when the need for arms is raised. The core legal purpose, as stated elsewhere in this discussion is self-defence. This element thus comes across as a contravention of the constitution. The argument the district raises is that there is provision for interpretation of exception in the case of self defence.

The fact is that the unequivocal text precludes that interpretation. A certain statement by the D.C. Court of Appeals also suggests non existence of self defence as an option. It says that the statute prohibits residents from using firearms when confronted by intruders. Some dissent justices make things even hazier by stating that although the Second Amendment guarantees the right to bear arms, D.C.’s prohibition holds (Cornell, 2003).

Just like most of the other laws governing the land, the rights protected by the Second Amendment are not unlimited; they are subject to strict government regulation for the good of all concerned. It is a fact that at the time ht Founding Fathers alluded to the freedom under discussion, there were no M2 machine guns,.50 calibers or any other weapons of such sophistication. All the way from Blackstone’s era, through cases heard in the nineteenth century, courts and commentators held the view that the right was not the green light to keep or carry any type of weapon, in whichever manner, for whatever intention. An instance of this is the nineteenth century prohibition on concealed weapons. Translating this to present day association, the argument of the mentally ill and felons carrying weapons comes into play.

Linked to this is the possession of firearms in sensitive locations like government buildings and schools. This is an indication of the dynamism, or lack thereof of, of the boundaries. The problem here is that there is no clear definition on what a sensitive place is, rendering the restriction vague and open to careless misrepresentation. It is necessary to acknowledge the other significant limitation regarding the right to keep and carry arms. The court opines that the kinds of weapons falling under the right in question are those used at the time. Traditions that banned people from carrying unusual, dangerous weapons back this view, more so from a historical angel (Cornell, S. 2006).

Certain quarters raise the objections that if weapons useful in the military are banned, then the amendment is removed the prefatory clause. There is a clear discord between the efficiency and efficacy of the militia today and that of the eighteenth century. The former would need the sophisticated arms, the kind unusual in the wider society. It is a fact that there is no degree of small arms provision that will effectively front against modern day tanks and bombers. That said and done, the recent developments that have created a limitation to the connection between the right and the prefatory clause cannot shift the right’s interpretation (John 2002).

Taking the argument to the people, a Gallup/NCC poll held in 2003 shows that most American citizens have a strong belief that the Second Amendment offers protection to individual ownership of firearms. The elements to their favor are enumerated thus: first, an overwhelming majority of the nation’s Founding Fathers believed in the right to keep and bear arms. Linked to this, the previous instance when the Supreme Court interpreted things form a civilian militia standpoint was seventy years ago, in 1939, when policies supporting elements like bans on birth control, racial segregation were termed constitutional.

Thirdly, the constitution remains a document. Regardless of the reason for the justification of the Second Amendment, it remains part and parcel of the document. It protects the rights of the American citizen, giving him/her an environment of equality, justice and peace. Another element in favor of defenders of the Second Amendment with respect to the right to bear and keep arms is that the Eighteenth Amendment gave rise to Prohibition while the Twenty-First overturned it. The legislature offers the American people the means through which to overturn the Amendment in question (the Second Amendment) should it lose meaning.

Moreover, without considering the Constitution, bearing arms falls under the list of fundamental human rights. People may observe this aspect this aspect as the way through which Americans will regain power over the government if it ends up hopelessly corrupt. At face value it is the last resort the public can adopt should well laid checks and balances be rendered ineffective (Head, 2009).

In addition to the above views 68% of the people, an element of the operative clause, were of the opinion that Amendment protects the stated right while 82% opined that the government of the day should regulate firearms to the a certain extent. A paltry 12% of the people found the Amendment restrictive. The people’s voice is very clear (National Constitution Center / Gallup Poll, 2003).

Classical liberal views of the world held that upright citizens must be ready to defend not only themselves, but society as well in the face of criminal usurpation. This application covers tyrannical ministers, pillaging domestic or foreign soldiery and apolitical outlaws. Philosophers concerned with natural law consider self defense as one of the primary natural laws, at the same time a good reason for humanity in society.

Taking the right versus duty argument, people have the right to life, but a duty to defend it. Absconding is equated to reviling God’s gift. Both liberty and property are accorded the protection of life. It is like taking the war scenario and localizing it to the honest, hard working individual. This train of thought brings to light the importance of the need and right to keep and bear arms. At the time of the nation’s Founding Fathers, the police as it is known today was a nonentity, raising the need for private self protection on the backdrop of the duty to protect life.

Theft, rape and murder, whether perpetrated by pillaging soldiery, judges, tyrannous officials, or gangs of ruthless assassins was treated with the seriousness it deserved. This is a manifestation of self protection as a promoter of universal good, values the nation holds dear today (Williams D. 2003).

The Amendment under discourse preserves civilian’s rights to keep as well as bear arms; it says nothing about the possession of certain arms. Whenever laws directly prohibit or limit the possession of arms in a manner that lacks grounding in just framing-era practices, the Amendment thus demands that laws be subjected to intense, thorough judicial scrutiny. The impact of the practice the restrictions challenged may then be challenged, ensuring that laws are upheld, weapons are in the right hands and there is proper regulation from the point of manufacture through sale, and finally to ownership (Schweitzer, 2009).

Conclusion

The general perception is that legislatures have the ability to regulate civilian use of firearms to the extent that there is there is no interference with the operation and preservation of a well-regulated militia. The Courts decree of the constitutional right to not only own but also use firearms for personal reasons seems to upset this perception. The records indicated an increase in gun violence in the region of Washington prior to the reversal of the ban and victims had no mode of self defence. Nevertheless, it leaves room for the definition of the scope of allowable regulations (Vandercoy, 1994).

The Second Amendment right hence gives individuals the right to privately possess as well as carry firearms peacefully. This interpretation fully compliments the history behind the right to keep and bear arms as discussed elsewhere in this paper. Moreover, it resonates with the formulation of the said right and pertinent statements by the Samuel Adams, Thomas Jefferson and other founding fathers. It reflects the large proportion of the proposals forwarded with respect to the Bill of Rights (Hickok 1991).

Essentially, the wording, concept and history of the Second Amendment to the United States’ constitution, coupled with its construal by every court and commentator in the early years after the Amendment’s ratification, gives the indication that what is given protection is individuals’ rights of private citizens to own and carry firearms, so long as it is done peacefully (Walker & Epstein 2003).

To every person, whether at the state or the individual level, the bottom line fact is that for every right, there is a corresponding duty. Individuals must observe gun laws in relation to safety and handling. When guns get into the wrong hands, the consequences are indeed dire. Life is precious, not only to the home owner, but to the perceived assailant. The legal concern that follows is how to prove that the actions taken are indeed in self defence, especially in one-on-one encounters. It may be a case of grudge settled a crime of passion or a reason different from the right covered by the Second Amendment. Issues of manslaughter, attempted murder and murder itself come into the picture.

Bibliography:

Breen, T. H., (1972), English Origins and New World Development: The Case of the Covenanted Militia in Seventeenth-Century Massachusetts. Past & Present 57 (1): 74–96. Web.

Cooke, E. F., (2002) A detailed analysis of the Constitution. Lanham, Md: Rowman & Littlefield, p. 100. Web.

Cornell, S., (2006), A Well-Regulated Militia – The Founding Fathers and the Origins of Gun Control in America. New York, Oxford.

Cornell, S., (2006) A Well-Regulated Militia – The Founding Fathers and the Origins of Gun Control in America. New York: Oxford University Press.

Halbrook, S. P., (1994) That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. p.8.

Head, T., (2002), Does the Second Amendment Protect the Right to Bear Arms? Web.

Hastings, D., (n.d). Baptist Press Land: Citizen’s Right to Bear Arms Undeniable. Web.

Hickok, Jr. The Bill of Right: Original Meaning and Current Understanding. Virginia: The University Press of Virginia, 1991.

John, R., (2002) Constitution Society: The Right to keep and Bear Arms. Web.

Kates, Jr., Don B., (1983) Michigan Law Review, Handgun Prohibition and the Original Meaning of the Second Amendment (The Michigan Law Review Association) 82 (2): 204-273.

Kopel, D. B.; Eisen, J. D.; Gallant, P., (2003), Guns Ownership and Human Rights, The Brown Journal of World Affairs 9 (2): 1–13.

National Constitutional Center /Gallup Poll 2003 Talk Back Study Final Topline. Web.

Schmidt, C., (2007), An International Human Right to Keep and Bear Arms. William & Mary Bill of Rights Journal (2007). (Williamsburg, Virginia: The College of William & Mary School of Law) 15 (3): 983.

Schweitzer D., (2003), NAAG: The Battle over the Second Amendment: District of Columbia v. Heller. Web.

The Oyez Project, District of Columbia v. Heller, 554 U.S. _ (2008). Web.

Vandercoy, D. E., (1994), The History of the Second Amendment. Web.

Walker & Epstein (2004), Constitutional Law for a Changing America: Rights, Liberties and Justice. Washington, DC: CQ Press

William & Mary Law Review, (1995) The Second Amendment and States’ Rights: A Thought Experiment. Web.

Williams, D. H., (2003). The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic. New Haven, Conn: Yale University Press p. 5. Web.

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