Saturday, January 15, 2011

Bet Ya Didn't Know This About the Constitution!

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?


testmonkey said...

Interesting read. Even more so in the context of pundits and others trying to couch the conversation in terms of individual versus militia rights.

This is an interesting statement: "Now, I'm not a 'gun person'. I'm not a 'violent person'." Those two things are often conflated (i.e.: you own a gun, therefore you must have some sort of violent tendencies). The more time I spend both with and around firearms, the more I realize there's little connection (aside from the truly violent folks who'll use any tool available to inflict their violence). In fact, here in Utah, I find more and more people (who a few years ago I'd never have suspected) are daily carriers, and they're as far from "violent" as it gets.

Well, this turned into a long comment. Sorry 'bout that. :)

Chow said...

Yeah as I was writing that ('gun person' and 'violent person') I had the same thought. The two are not necessarily dispositive of each other. But I think there's an undeserved association there. I'm guilty of it. But you're right, it's not one in the same.

The individual vs. militia rights are brought up in the DC v. Heller dissent part of the opinion. It's quite interesting. They say that the 2nd amendment has been read wrong for the past 200 yrs and it refers only to army or times of war on American soil (Civil War, War of 1812).

The way you define the words determine what rights we have. SUPER interesting!

Thanks for your comment!

Super Stephens said...

I like test monkey's comment. I am not a violent person (usually), but I have guns for the purpose of protection, and hunting. Kyle and I both know that one day we may be dependant on those tools to survive. I am always will to give a little gun class Chow Chow! Aside from the fact that I find guns very interesting, I think they are widly misuderstood! But this was a good read, didn't know any of that!