« on: June 29, 2007, 09:50:09 AM »
One thing that has always bothered me with 2nd Amendment debates, as fascinating as I find them, is one argument pro-gun control people make that the 2nd Amendment was enacted so that people could raise militias for the defense of the country.
Article I of the Constitution gives the Congress the right to raise an army and provide for the national defense. Article II of the Constitution gives the Executive the Commander in Chief power. I think, as law students, we can all agree on this, right?
So, here's my question...Since Art. I gives Congress the right to raise an army and provide for the national defense and Congress is designed to be representative of the people, why would you need the 2nd Amendment to provide the people with the right to raise their own militias? Wouldn't that be repetitive? Especially since Art. I came before the 2nd Amendment.
It would seem to me that the 2nd Amendment shows that the founders knew what we seem to have forgotten in the current "Government as mommy/daddy/welfare provider" state that is the United States. That in order to protect this nation from devolving into tyranny, it is vital that the people be armed, so that they can protect themselves against government tyranny. This is especially so when the 2nd Amendment (indeed, the entire bill of rights) is taken in context. The Bill of Rights arose as a compromise between those who wanted the Constitution to be ratified as was originally drafted (sans BOR) and those who felt that the Constitution, as originally drafted, was lacking in protection of individual rights. The Bill of Rights was created as a compact between the federal government and individuals, guaranteeing the rights of the individual that the government could not encroach upon. Again, it is important to remember the context in which this event occurred. The United States had just emancipated itself from British rule. The Bill of Rights was enacted to prevent the Federal government from behaving in a manner similar to King George's British government. One of the methods of controlling the colonies was to prevent colonials from arming themselves. The only people in Colonial America who really had guns were those on the frontier and those who fought with the British in the French and Indian Wars, which were largely the ones who fought in the Revolutionary War.
Based on the Historical Context of the Bill of Rights' ratification period, it would seem to me that the 2nd Amendment would largely be meant as a mechanism through which individuals have the right to arm themselves for protection against government tyranny. Now, granted, as society has evolved, we have largely found other ways to prevent government tyranny, mostly through the ballot box. However, just because we, largely, no longer choose to enter into armed conflict with the government, does not mean we forfeit the right that that amendment guarantees, which is the right to arm ourselves. Just as I still have the right to consume alcoholic beverages, without interference from the federal government, even though I no longer choose to do so.
As for the lack of incorporation of the 2nd Amendment goes, the DC circuit, this past spring, ruled that the 2nd Amendment is incorporated by the 14th Amendment, thereby creating a split in opinion among the circuits. I believe this matter is on the Court's calendar next term, so it should be interesting to see how the Roberts Court deals with this issue.
Lastly, from a practical standpoint, the problem with gun violence is caused, largely, by criminals. Most criminals don't go into Wal-Mart or any other commercial dealer of firearms to purchase guns to use in criminal acts. They go to Manny who sells them from the trunk of his 68 Impala. Manny's guns (or whoever the local gun dealer is) have the added advantage of having the serial numbers burned off with acid and having the firing pin and cylinder filed down to take away any marks on the shell casings which would lead police to distinguish a .40 caliber round that came from, say, a Smith and Wesson versus a .40 caliber round that came from a Glock, thus hindering police investigation. Therefore, it would seem to me, that if we banned guns tomorrow, the people we don't want to have guns (criminals) would still be able to purchase an AR-15 or AK 47 from Manny, the local gun dealer.