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Revisioning the Right to Keep and Bear Arms
by Steve Pleich
Monday Aug 12th, 2013 11:01 PM
A Second Look at the 2nd Amendment
Once again our community is being plagued by gun violence and yet we still seemed focused on the symptoms and not the disease. While we are all too eager to decry the proliferation of gun related violence when it reveals itself in horrific events such as that of Sandy Hook, we seem strangely reluctant to turn that level of shock, outrage and urgency of action inward on ourselves. And just as importantly, we refuse to ask the foundational question about the constitutional right to gun ownership that seems to create an impenetrable wall of resistance to even the most minimal notion of gun control.

From my first day of law school I had a running argument with my Constitutional Law professor about the 2nd Amendment and the public perception that the right to bear arms is constitutionally guaranteed. Historically, the presence or absence of a “right to keep and bear arms” has been the subject of vigorous debate among constitutional law scholars for more than 150 years and I have added my own small contribution to that ongoing difference of opinion.

The text of the amendment reads, “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.” In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court ruled that the Second Amendment "codified a pre-existing right" and that it "protects an individual right to possess a firearm unconnected with service in a militia”. With respect, this analysis misses the mark. Service in a militia is not the determining factor. Rather, the “need” for a militia determines the constitutional right to keep and bear arms. My very point is that today we do not need a militia to secure our safety and, therefore, do not need to keep and bear arms to safeguard that security.

I would argue that the right to arm oneself was indeed necessary at a time when citizens had no other means of safeguarding themselves and their homes. They “needed” a regulated citizen militia for the common defense. But in today's world we have police forces and standing armies for exactly that purpose. Without the existence of that communal need, there is no right to bear arms for security’s sake. That right has now evolved by dint of time and civility to a privilege and like the license to operate a motor vehicle it is a privilege that must be exercised responsibly.

While many sections of the Constitution of the United States are appropriately susceptible to a "plain text" or "literal" reading, the 2nd Amendment, in my view, is not. I believe the framers envisioned an evolving document that would be responsive to the changes of a young and still maturing nation; changes that they could anticipate but could not foresee. The ambiguity in the phrasing of the arms clause places the responsibility to revision that clause on future generations. As part of the future those great and prescient men only glimpsed, it is incumbent upon us to take up this question in earnest. If we cannot evolve as a society, then we have failed those founding fathers and equally failed that foundational document which was created to guide our evolution as a society of fellow citizens and as a nation of laws.

Comments  (Hide Comments)

by PS
Tuesday Aug 13th, 2013 8:47 AM
Your views are short sighted at the least and incredibly naive at the worst. There is no duty for the police to protect citizens. Even if a duty exists, will the police department assign someone to protect every citizen? It cannot be done. People refuse to believe that they are susceptible to harm. I live in a small suburban town just outside of Indianapolis. I believe we have had only two homicides in the last 20 years or so. But crime is slowly creeping into the community from Indianapolis. Just a few months ago, a man was shot and killed by a couple of teenagers on the south side of Indianapolis. The teenagers then travelled to the west side of town and tried to rob a man at gunpoint. The teenagers then shot a man who was walking his dog. They were finally caught after a long police chase just two miles from my house. I am sure the police were looking for these two thugs, but they were not around to protect anyone. The best they can do is file a report and try to find someone after the damage has been done. The worst part is that one of the teenagers was released from juvenile detention just a few weeks before the crime spree. The kid's mother apparently pleaded with the government to keep him locked up. She new he was going to be involved in something horrible.

I believe that 99.9% of people are good people. It is the small number of evildoers that we have to worry about. If you think the police can protect you from that .1%, you are deluding yourself. The gun control advocates would like you to believe that you are safe. But if you look closely, virtually all of the gun control proposals have exemptions for government officials, security company workers, etc. What that really means is that the rich are allowed to protect themselves, but the rest of the population is not worthy of any form of protection.
by Howdy
Tuesday Aug 13th, 2013 9:33 AM
"But in today's world we have police forces and standing armies for exactly that purpose. Without the existence of that communal need, there is no right to bear arms for security’s sake."

The crux of your whole argument is you feel the government adequately meets all of your security needs.

Warren vs DC is all you have to reference to understand how weak that stance is. The government has no obligation to provide for your personal security. If you do not see the issues with a transient representative workforce or professional politicians that make lasting decisions on your behalf that have no impact on themselves, then you are beyond discussion.

The statement quoted above show how desperately myopic and inexperienced you truly are.
by Silver Bear
Tuesday Aug 13th, 2013 9:59 AM
George III ordered the disarmament of the colonists in all 13 colonies in the spring of 1775, violating the rights of Englishmen held since the 13th Century. His actions failed miserably, exacerbating the distrust of The Crown and fanning the fires of revolution. The founding fathers simply codified our rights of 500 previous years. Our 2nd amendment rights shall not be infringed. And tyranny will always face an armed citizenry in the United States of America, despite your opinion and those of its ilk.
by BHirsh
Tuesday Aug 13th, 2013 10:28 AM
According to the rules of English grammar and usage, the sentence is simple and straightforward. The prefatory clause states the reason the right is being enumerated. It does not create the right, which is presumed to exist by the operative clause., nor does it place any conditions on the right. The right is declared unconditionally by the operative clause.

The term "well-regulated" modifies the noun, "militia", not the noun, "right". The two aren't even in the same clause. It is the militia that is to be well-regulated, while acting as a militia. Nothing in the sentence grammatically connects regulation to the right.

Stated another way, the amendment says that the right is assumed to exist, that the government has no power to infringe it, and that the reason it is being enumerated is to guarantee the people's ability to form and maintain a militia to insure their continued liberty.

Efforts to confound the obvious notwithstanding, the amendment speaks for itself.
by BurySomeInTheHills
Wednesday Aug 21st, 2013 10:41 AM
District of Columbia v. Heller, 554 U.S. 570 (2008), you have an inalienable right to have a gun in your home for self defense. Rights are inalienable Steve, they cannot be taken away by legislative action nor by the opinions of law students.

"That right has now evolved by dint of time and civility to a privilege"

RIGHTS NEVER DEVOLVE. By your reasoning the right of the poor to sleep is now a privlege by the dint of police harrassment and the existence of an adequate alternative in the form of methamphetamine.