Gun Rights Predicated on Regulation

Posted: Tuesday, June 29, 2010 at 6:01 am
By: Cory Allen Heidelberger
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The  Supreme Court’s affirmation yesterday of citizens’ right to own a handgun and keep it at home gets me wondering: does the Second Amendment contradict itself?

I doubt that: the Founding Fathers were smart enough not to write illogical statements into the Constitution (well, except for that three-fifths clause). The contradiction I feel coming lies more in the irrational reasoning of folks like the Second Amendment Sisters, who think you ought to be able to pack heat anywhere, anytime, or Governor Rounds and far too many of our state legislators, who think you should be able to make and use guns and ammo in South Dakota without any federal regulation.*

Did someone say regulation? Let’s review the Second Amendment:

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.

First phrase: well regulated Militia. The Founding Fathers framed the proper keeping and bearing of Arms in the context of regulation. The Constitution gives Congress the power to call up, organizing, arm, and discipline that militia. Our right to bear Arms appears to exist, in the Founding Fathers’ minds, under the assumption that Congress gets to regulate those Arms.

Compare the phrasing of the Second Amendment with its neighbors. No other Amendment feels the need to explain itself. The First Amendment does not say why we need freedom of religion and speech (“A well exercised and expressed conscience, being necessary to the functioning of a free Democracy and personal integrity…”); it goes right to business, saying “Congress shall make no law….” Same with the other amendments: Washington, Franklin, Hamilton, et al. don’t explain why the government can’t quarter soldiers in peacetime or search without a warrant or impose excessive bail. The later amendments don’t go there, either: the Constitution doesn’t tell use why we can’t have slaves or why we should have an income tax or why we should not or should have a stiff drink.

The Second Amendment is an anomaly, specifying the context motivating its protection. And that context is not individual self-defense or pheasant hunting or a God-given right to blast old buckets with your AK-47 (that happens here at Lake Herman). The Second Amendment explicitly assumes our guns exist in a framework of regulation to serve the State. If you want to posit other gun rights and oppose gun regulation, you can’t rely on the Second Amendment; you have to hope for judicial activism… like that exercised by the Court’s slim conservative majority Monday.

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Update: One more thought from my comment section… could the example of civil disobedience and nonviolent resistance from Gandhi and King make the Second Amendment obsolete in the same way that the model of mechanized agriculture driven by Eli Whitney and John Deere made slavery obsolete?

About Cory Allen Heidelberger:
Cory Allen Heidelberger is the loyal opposition. He is passionately in love with his wife, his daughter, and South Dakota. He questions the status quo regularly at his home blog, the Madville Times.

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14 Comments

  1. Jeremy Ackman says:

    Cory, I don’t agree with your view here, and this is why this is always such an easily debatable amendment.

    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.

    I believe what the writers were saying here is that a Militia is necessary for the security of a free State.
    And in order to have a well regulated Militia the people need to keep and bear Arms.

    Notice that it both the words keep and bear are included there.
    Keep points to the fact that the founders understood that it would be essential for the people to not only own, but maintain use and learn to be proficient, thus being able to act in an ethical and efficient manner when standing up to a threat.

    And to bear means to carry. I always think of it this way, you see something happening say a man holding you wife at gun point while pushing her into a dark alley… You have a handgun, your well trained, it’s loaded you can stop this right now, but it’s at home in the safe. What are you going to do, say hold on Mr. Bad Guy, while I run home and get my gun, please.

    Nowhere in the second amendment does it say well regulated Arms

  2. obiwan says:

    “The Second Amendment explicitly assumes our guns exist in a framework of regulation to serve the State.”?

    The Second Amendment explicitly assumes our guns exist in a framework of regulation for the people to protect themselves from the State and to throw off tyrannical government and restore the Constitutional Republic..

  3. So I’m wondering, Jeremy: if guns are necessary to national security, should we interpret the “right” to bear arms as an “obligation”?

    And “obiwan”, how have all the guns in our closet stopped the Patriot Act? Or TARP? Or health care reform? Or anything else that I’ve heard various commentators describe as modern tyranny?

  4. Terry says:

    As for right being interpreted as an obligation, could very well believe that.

    Our forefathers when writing this amendment just came from a time where the British wanted to remove all guns from the people so they would be easier to subdue.

    Our forefathers believed that it was a citizens duty to stand up to tyranny.

    To our forefathers who founded this nation, Freedom of Speech was the most important right and the Right to Bear Arms was the second most important right. The second guarantees the first.

  5. Dennis says:

    We all have the “right” to bear arms…I have an “obligation” to my family to protect them from a home invasion. I use my right to fulfill my obligation.

  6. Obiwan says:

    Hi Cory,

    That’s a great question. Too bad that the guns in our closets (2nd amendment) only symbolize the threat of angry mobs lynching treasonous elected officials who vote on tyrannical bills because those officials either haven’t read them or they are forced into voting for them because they have been deliberately compromised by corruption.

    When the closet guns come into play is after this cold smoldering tyranny (creeping coup) goes into hot hard-core jack-booted Nazi thug mode. Unfortunately the second amendment is activated last, after the other Rights have been taken.

    I think that it is fantastic that you recognize that the PATRIOT act and the TARP payouts were tyranny. Kudos to you. We cannot end tyranny until we recognize tyranny.

    1. identify the predator
    2. warn the herd
    3. neutralize the threat

    Aleksandr Isayevich Solzhenitsyn:

    And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, polkers, or whatever else was at hand? After all, you knew ahead of time that those bluecaps were out at night for no good purpose. The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt!

    If… if… We didn’t love freedom enough. And even more – we had no awareness of the real situation. We spent ourselves in one unrestrained outburst in 1917, and then we hurried to submit. We submitted with pleasure! ……….. We purely and simply deserved everything that happened afterward.

  7. joe gum says:

    Corey, if you read the second amendment the way you interpret the first, you would believe gun ownership to be mandatory. You have the right to free speech; to say whats in your heart or on your mind. You have the right to worship (or not) the religion/god of your choice. You even have the right to put pen to paper ( or type on the internet ) whatever drivel makes you happy. ALL rights derived in the Constitution are protected by amendment #2. By threat of an armed populous, it is increasingly hard for government to impede the rights of the governed, although this current administration is doing it’s damnedest to do it by force of will.

    What should truely scare us all is that it was a 5-4 decision, in what should have been unanimous. Seeing things in the Constitution that are not there,( or deliberately ignoring what is there) negates the bravery, integrity, and honor of those men who put their lives on the line to create this nation of ours. Wasington, Jefferson, et al have to be whirling in their graves over the fact 4 Supreme Court judges would disagree to the most basic of individual freedoms – the right to protect and provide for ones self.

    By the way, my gun is safer than Ted Kennedy’s car.

  8. Badger says:

    It seems funny how Cory does not mind it when rulings stray far from the constitution wording and meaning when they lean to the liberal side. Yet he tries to pick apart the meaning of a ruling that solidifies the individual rights to protect himself and his family. So Sad,So sad

  9. Alpheus says:

    A few points:

    1. How can banning individuals from keeping or carrying a weapon be considered “regulating” a militia so that it would preserve the Free State?

    2. While it may be far less straightforward in trying to deal with Federal tyranny, there are much smaller forms of tyranny that we could confront every day: muggings, robberies, invasions of home, etc. (I would contend that we have the right to pick up arms against the Federal Government for those things described by Cory in a comment, and more, but as John Locke pointed out, so long as the great majority of society doesn’t recognize it as tyranny, any attempts of rebellion will only be seen as actions of malcontents and madmen, and so such rebellion would be futile.)

    3. Yes, owning firearms is an obligation as well as a right: we have the obligation to do what we can to preserve our own lives, as well as avoid confrontations that would put our lives in risk.

    4. Even if rebellion against tyranny would be futile, don’t we have a moral obligation to fight it? Were the Jews of Warsaw wrong to fight against Nazi Germany, even though their struggle failed? Was the White Army wrong to fight the Bolshivieks, even though they still lost? And how would Ghandi’s tactics have worked in these situations? Ghandi’s tactics, while important, carry us only so far; there sometimes comes a time where we must pick up arms, and fight for our rights. This isn’t to say that Ghandi’s tactics are futile: they are more often than not crucial for winning over the hearts of the people, even if it eventually comes to violent revolution.

  10. Alpheus says:

    Oh, and I forgot: “If you want to posit other gun rights and oppose gun regulation, you can’t rely on the Second Amendment; you have to hope for judicial activism” Unfortunately, this is true with the First Amendment as well, as well as all our freedoms, and it will be true, regardless of the decision being 5-4 or 9-0.

    But that isn’t to say we shouldn’t fight for our rights!

  11. Ryan VanderLeest says:

    Cory you ask obiwan how the guns in the closest have stopped possible acts of tryanny? Although it is slighty on topic, the right to bear arms possibely given in the 2nd admendmant does not force us to use the right. Even if the intent of the written admendmant was to retake the goverenment from an unfair leadership, it still only gives the right not the will.

  12. Taxpayer says:

    Cory:

    I do not agree with your view of the 2nd amendment. Get a copy of the “2nd Amendment Primer, by Les Adams. It goes into great detail and has many quotes from the founding fathers.

    First off, “well regulated” meant “well functioning” in early America. The Militia consisted of the general male population. You, and othere,are calling the militia the National Guard. The militia was formed to keep a tyranical government, be it State or Federal, at bay. Why should the militia be governed by the very State and Federal enity that they were formed to protect against?

    James Madison wrote that a standing army should not equal more than one, one hundredth of the whole number of population, or one twenty fifth of the population able to bear arms. He assumed that the militia amounted to one half million citizens, compared to twenty five or thirty thousand regular army. This was to keep the Government from overpowering the citizens.

    I also disagree with your quote about the 2nd Amendment Sisters, and Governor Rounds. I believe that any law abiding citizen of at least 18 years, with a concealed carry permit should be allowed to carry a weapon any place in the United States, with exception of alcohol establishments, and most carriers would be responsible there. Permitted carriers have supposedly been checked and most states require training in the use of weapons. Some years back, an old Judge stated, at a hearing, that he had never prosecuted a criminal that had a concealed carry permit. As for Governor Rounds and other legislators, why should we have to have the Federal government oversee our lives? We live in a far different environment, than people in New York, for example.

    In this day and age, we are now almost totally controlled by Federal Government. Check the history books. All we need, to be enslaved, is to turn in all our weapons. If it is up to Obama, Pelosi, Clintons, and several other Democrats, we will end up that way. We must not let that happen.

    In conclusion, I feel that carrying a weapon is like insurance. Its fine if you don’t need it, but it’s hell if you need it and don’t have it!

    GOD BLESS AMERICA!

  13. Example, Badger? I think you’re listening to the imagined enemies in your head instead of dealing with what I’ve actually said. Get specific (and leave my family out of your arguments… unless you want to reveal your name and legt me make your family part of the argument).

  14. Joe, I’ll say it again: all the guns in our closets didn’t stop the government from passing the Patriot Act, the biggest infringement on our Constitutional rights that I’ve seen in my lifetime. You and I could round up a militia armed with every firearm in Madison, and a tyrannical chief executive could quash our rebellion with one B-1 bombing run, or a deftly aimed microwave crowd control device. Technological progress has turned the Second Amendment as a check on government tyranny into an obsolete myth.

    That doesn’t mean I want to take everyone’s guns away; it just means the old justification doesn’t apply.