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joshbaumgartner · 04-12-2006, 10:00 PM

The following is my own opinion and interpretation in regards to the Second Amendment.

The heart of the matter is the ability of the people to defend themselves from tyranny, both of a foreign nature as well as from their own government should it no longer be in their service. While the First Amendment is critical to protecting the people's right to develop and implement their will upon the government, the Second ensures that the government not have the ability to trump that freedom by use of force, and that instead, the people have the ability to defend themselves and enforce adherance to the Constitution by force if necessary.

Some view the well-regulated militia part and the right of the people to keep and bear arms part as seperate concepts, but I see no real rationale to that distinction. The militia is a military force by of and for the people as opposed to the standing army which is an arm of the Federal Government. A militia is not a permanent force but one that is drawn from the people as called for. The maintenance of such militia demands that the citizenry be able to keep arms such that they be available in case of such a call.

The states' National Guard forces could qualify as such a militia, well regulated as they are, but their increasing Federalization makes this less and less credible. When cases arise such as Louisiana last year, in which case the state did not have the ability to call on its own forces to meet its own needs due to their obligation to the Federal Government, this point is made all the more clear.

The regulation of weapon ownership is an interesting issue as well. On one hand it is clearly stated that the militia is to be well regulated, but on the other hand the right to keep arms shall not be infringed. My take on it is that regulation is self-imposed, and is essentially what today we would call organization, not necessarily regulation by the Federal Government. The essence of it is that in our own community, we have the right to form organized militia, with arms available for our equipment, ready to bear those arms when called upon in the defense of a free state.

What does that mean for the regulation of specific weapons? First off, I don't see any distinction especially for firearms. The Amendment neither specifically allows nor excludes firearms, or any other specific weapon, in the matter. We all can pretty well agree that firearms are weapons, or 'arms' as stated, but what about knives, or a stick of TNT? Depends on usage, doesn't it? Thus in many states, it legal to own a working howitzer, provided you get the right permits. I guess it all comes down to how one see the idea of 'shall not be infringed'. Many see permits and registration as a form of infringement. In the strictest sense of the word, that is correct. But it is impossible to have rights without any infringement. Afterall, it doesn't state what I can or can't bear arms against, so restricting my freedom to bear arms against other citizens is, in the strictest sense, an infringement. Thus, I have to conclude that 'to infringe' does not mean 'to regulate', but instead to place undue restriction upon.

Thus I think it is reasonable that there be some regulation of firearm and other weapon ownership, manufacture, transfer, transport, storage, and usage. This is a requirement so that such weapons do not pose a greater threat than that which they are to protect us from. In the end, however, the people shall not be prevented from acquiring and keeping such weapons as necessary for the maintenance of militia.

How does this translate to various issues today?
1) People should be able to have weapons on their own property. The SF Ban goes to far by preventing this.
2) Carriage of weapons in public is not protected, thus the SF ban is within bounds to ban carriage in public. Concealed carry is not a right.
3) The well-regulated militia referred to is not limited to nor satisfied by the existance of the National Guard. Other militias may be organized by the people and may be called into action in defense of the free state.
4) Regulation is necessary to ensure that weaponry does not represent greater danger than defense. Registration, safety and operational training requirements, and verification of citizenship are all valid regulations in the interest of the people of a free state.
5) Prohibition of weapons is contrary to the Amendment, regardless of the nature of the weapon. Thus things like automatic weapons should not be arbitrarily banned, but instead, so long as the citizen operates within due regulation, they shall be permitted to keep such weapons. Yes, this means you can buy a howitzer or an anti-aircraft missile. This also means that if you are not currently incarcerated or otherwise prohibited expressly by terms of the court as the result of a criminal conviction, your right to keep arms shall not be prohibited. Yes, this means ex-felons shall be allowed to own weapons, provided that the court did not see fit to specifically prohibit such ownership as due sentence of a criminal conviction. Blanket restrictions based solely on a person's status as an ex-felon, even after all terms of a sentence have been served, are in my view an infringement of rights.

I doubt such conclusions will make wither pro-gun or anti-gun folks happy.

A note on crime: Nowhere in the Amendment does it list crime as a justification for either the right to keep nor for regulation of weaponry. Thus, any debate about the effect of gun ownership on crime rates is completely irrelevant to discussion about the Second Amendment. The only stated rationale for keeping and bearing arms is the maintenance of militia for defense of the free state. The defense of the free state demands that weapons be available for a militia, but also that said militia be regulated. It is only in the interest of the maintenance of the free state that said right and said regulation exist. Other rationale is beyond the Amedment and thus not protected by the Amendment.

04-12-2006, 10:00 PM	#15 (permalink)
joshbaumgartner Insane	The following is my own opinion and interpretation in regards to the Second Amendment. The heart of the matter is the ability of the people to defend themselves from tyranny, both of a foreign nature as well as from their own government should it no longer be in their service. While the First Amendment is critical to protecting the people's right to develop and implement their will upon the government, the Second ensures that the government not have the ability to trump that freedom by use of force, and that instead, the people have the ability to defend themselves and enforce adherance to the Constitution by force if necessary. Some view the well-regulated militia part and the right of the people to keep and bear arms part as seperate concepts, but I see no real rationale to that distinction. The militia is a military force by of and for the people as opposed to the standing army which is an arm of the Federal Government. A militia is not a permanent force but one that is drawn from the people as called for. The maintenance of such militia demands that the citizenry be able to keep arms such that they be available in case of such a call. The states' National Guard forces could qualify as such a militia, well regulated as they are, but their increasing Federalization makes this less and less credible. When cases arise such as Louisiana last year, in which case the state did not have the ability to call on its own forces to meet its own needs due to their obligation to the Federal Government, this point is made all the more clear. The regulation of weapon ownership is an interesting issue as well. On one hand it is clearly stated that the militia is to be well regulated, but on the other hand the right to keep arms shall not be infringed. My take on it is that regulation is self-imposed, and is essentially what today we would call organization, not necessarily regulation by the Federal Government. The essence of it is that in our own community, we have the right to form organized militia, with arms available for our equipment, ready to bear those arms when called upon in the defense of a free state. What does that mean for the regulation of specific weapons? First off, I don't see any distinction especially for firearms. The Amendment neither specifically allows nor excludes firearms, or any other specific weapon, in the matter. We all can pretty well agree that firearms are weapons, or 'arms' as stated, but what about knives, or a stick of TNT? Depends on usage, doesn't it? Thus in many states, it legal to own a working howitzer, provided you get the right permits. I guess it all comes down to how one see the idea of 'shall not be infringed'. Many see permits and registration as a form of infringement. In the strictest sense of the word, that is correct. But it is impossible to have rights without any infringement. Afterall, it doesn't state what I can or can't bear arms against, so restricting my freedom to bear arms against other citizens is, in the strictest sense, an infringement. Thus, I have to conclude that 'to infringe' does not mean 'to regulate', but instead to place undue restriction upon. Thus I think it is reasonable that there be some regulation of firearm and other weapon ownership, manufacture, transfer, transport, storage, and usage. This is a requirement so that such weapons do not pose a greater threat than that which they are to protect us from. In the end, however, the people shall not be prevented from acquiring and keeping such weapons as necessary for the maintenance of militia. How does this translate to various issues today? 1) People should be able to have weapons on their own property. The SF Ban goes to far by preventing this. 2) Carriage of weapons in public is not protected, thus the SF ban is within bounds to ban carriage in public. Concealed carry is not a right. 3) The well-regulated militia referred to is not limited to nor satisfied by the existance of the National Guard. Other militias may be organized by the people and may be called into action in defense of the free state. 4) Regulation is necessary to ensure that weaponry does not represent greater danger than defense. Registration, safety and operational training requirements, and verification of citizenship are all valid regulations in the interest of the people of a free state. 5) Prohibition of weapons is contrary to the Amendment, regardless of the nature of the weapon. Thus things like automatic weapons should not be arbitrarily banned, but instead, so long as the citizen operates within due regulation, they shall be permitted to keep such weapons. Yes, this means you can buy a howitzer or an anti-aircraft missile. This also means that if you are not currently incarcerated or otherwise prohibited expressly by terms of the court as the result of a criminal conviction, your right to keep arms shall not be prohibited. Yes, this means ex-felons shall be allowed to own weapons, provided that the court did not see fit to specifically prohibit such ownership as due sentence of a criminal conviction. Blanket restrictions based solely on a person's status as an ex-felon, even after all terms of a sentence have been served, are in my view an infringement of rights. I doubt such conclusions will make wither pro-gun or anti-gun folks happy. A note on crime: Nowhere in the Amendment does it list crime as a justification for either the right to keep nor for regulation of weaponry. Thus, any debate about the effect of gun ownership on crime rates is completely irrelevant to discussion about the Second Amendment. The only stated rationale for keeping and bearing arms is the maintenance of militia for defense of the free state. The defense of the free state demands that weapons be available for a militia, but also that said militia be regulated. It is only in the interest of the maintenance of the free state that said right and said regulation exist. Other rationale is beyond the Amedment and thus not protected by the Amendment.