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Thursday, May 31, 2012

2nd Amendment, Front and Center at Temecula Constitution Class

"[T]he people are not to be disarmed of their weapons. They are left in full possession of them." --Zacharia Johnson, speech in the Virginia Ratifying Convention, 1788

The Second Amendment does not give you the right to keep and bear arms.  The Second Amendment does not protect you against the government taking away your guns.  Your rights are given to you by God, and protecting your rights are your responsibility.

In the Washington DC v. Heller case in 2008 the Supreme Court of the United States determined that the right to bear arms is an individual right, as opposed to a collective right which would only allow the bearing of arms for the purpose of participating in government approved groups, such as law enforcement agencies.

The Anti-Federalists feared the creation of a central government because they feared the federal government would become tyrannical, and stomp all over the people’s rights. Therefore, even though the Constitution in the first seven articles did not give the federal government any authority over gun rights, those skeptical over the creation of a central government wanted an amendment that clarified clearly that the federal government had no authority to infringe on the right to keep and bear arms.

All powers belonged to the States prior to the writing of the Constitution. The first seven articles did not give to the federal government the authority to regulate firearms, therefore, any legislative power over gun rights is a state power. The 2nd Amendment simply confirms that.  The argument then becomes about the tyranny of the States. In other words, if the 2nd Amendment does not apply to the States, what keeps the States from infringing on gun rights?

The State Constitutions, and the people, hold the responsibility of restraining the States from infringing on the right to keep and bear arms. The Founding Fathers were not concerned with a tyranny of the States because the State governments are closer to the people, and therefore the people have a much easier time acting to ensure the State governments do not infringe on individual rights.

The only thing that can put our rights in jeopardy concerning State governments would be if we became so complacent that we stopped taking action to protect our rights.

Once again, with freedom comes responsibility.

The question asked often is, “Why did the Founding Fathers put so much importance on gun rights?”

In early American society the need to be armed was necessary for protecting one’s property, facilitating a natural right of self-defense, participating in law enforcement, enabling people to participate in an organized militia system, deterring a tyrannical government, repelling invasion, suppressing insurrection, and hunting.

The right to keep and bear arms is not merely about protecting your home, or hunting, though those are important too. The primary point of the 2nd Amendment is to protect us against all enemies, foreign and domestic, which could include a potentially oppressive central government.

Noah Webster in his “An Examination of the Leading Principles of the Federal Constitution,” in 1787 said it clearly: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

Some will argue that the 2nd Amendment does not apply to our current society because the militia is a thing of the past.

The National Guard now serves as the organized militia envisioned by the Founding Fathers, but an unorganized militia also exists.

Title 10 of the United States Code provides for both "organized" and "unorganized" civilian militias. While the organized militia is made up of members of the National Guard and Naval Militia, the unorganized militia is composed entirely of private individuals.

United States Code: Title 10 – Armed Forces, Subtitle A – General Military Law
Chapter 13 – The Militia:

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the Naval Militia.

Other than age, health, gender, or citizenship, there are no additional provisions for exemption from membership in the unorganized militia. While it is doubtful that it will ever be called to duty, the United States civilian militia does legally exist.

The recent case of McDonald v. City of Chicago (2010), which challenged the City of Chicago’s ban on hand guns, brought to the surface the debate over whether or not the 2nd Amendment only applies to the Federal Government.

The 5-4 Decision of the McDonald v. City of Chicago case by the U.S. Supreme Court holds that the 2nd Amendment protects the right to keep and bear arms in all cities and States. The U.S. Supreme Court concluded that originally the 2nd Amendment applied only to the Federal Government, but it is in the opinion of the court that the 14th Amendment incorporates the Bill of Rights, therefore applying those amendments, and more specifically the 2nd Amendment, to the States.

The decision by the Supreme Court, in this case, makes all State laws on fire arms null and void. By applying the 2nd Amendment to the States, that means the Second Amendment is supreme over any and all State laws on firearms.  However, studying the language of the Second Amendment carefully, one concludes that would mean all persons are allowed to possess a firearm, for the language of the Second Amendment also makes all federal gun laws null and void.  After all, the final words, “shall not be infringed” carries no exceptions.

The reason that the Second Amendment is absolute in its language is specifically because it was intended to only apply to the federal government.  The federal government shall not infringe on the right to keep and bear arms in any way, but the States retained the authority to regulate guns as necessary based on the needs and allowances of the local electorate.

The U.S. Constitution applies to the federal government except where specifically noted otherwise.

In reference to McDonald v. Chicago, I am uneasy anytime the federal government tells a city or state what they have to do.

If we give the federal government the right to tell cities they have to allow gun ownership, what stops them from doing the opposite later? This case created a precedent of allowing the federal government to dictate to the states and cities what they have to do, and in that I recognize a great danger to state sovereignty.

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Join us tonight in Temecula at Faith Armory gun store (next to Birth Choice) on Enterprise Circle West at 6:00 pm for our discussion on the 2nd Amendment.

I will also discuss at the beginning a little on the discussion on the Constitution I had with Dr. Larry Arnn, and our disagreements on issues like Judicial Review and Nullification.

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