I've been thinking about this for sometime. I wanted to wait and post about other things, but I can't wait any longer. I keep laughing about this when I hear people talk about it, and I want other people to know why I'm laughing.
Alright. So here's the topic: the 2nd Amendment "Right to Bear Arms."
"A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed"
Alright. Just keep this in mind. Now some back story: American law is based upon English law. Our body of law came across the ocean and then was modified and changed. In English law, there are certain rights that the Founding Fathers thought were so important, that they brought over from England and put them in the Constitution (you may be thinking, so what? But this is HUGE). This is HUGE because these rights have become known as natural right. Inalienable rights. Rights that do not derive from the people's social contract with their government, but that the people already have.
For example, the right against imminent domain. The government cannot take your stuff, or your land, without just compensation.
Alright, so to the ♥ of the matter: Washington DC v. Heller 554 U.S. 570 (2008). In this case, the issue is the right to bear arms---the 2nd Amendment. The opinion from the Supreme Court essentially said this:
The 2nd Amendment does not give the people a right to keep and bear arms. That is a natural right brought over from England. It's an inalienable right. It is a right that does not derive from the social contract between the people and their government, but this is a right that the people already have.
What the 2nd Amendment does is merely guarantee that the government will not get in the way of this right.
Interesting huh? So it makes me laugh lately when people refer to gun rights as their "Constitutional Right" or their "2nd Amendment Right". I mean, I don't think it's detrimental to refer to it this way. But knowing what this right actually is, makes it funny when people say otherwise.
Also, as a sidenote: this doesn't mean that government can't regulate guns. They can regulate guns in a few ways still- through the Commerce Clause in Article I of the Constitution, and in balancing national security against individual rights (and probably some other ways beyond my 2L law school knowledge).
Learning this was also interesting for me because I am not the handiest with a gun. I've been meaning to take some classes to learn more, and this sort of motivates me to learn more. Knowing that this is a right found to be so precious to the Found Fathers, sort of makes me want to exercise this right a little more. Now, I'm not a 'gun person'. I'm not a 'violent person'. But I don't think being afraid of guns or uneducated of guns is a good thing either.
So, did you know that about the Constitution?