The original intent of the Constitution of the United States was to limit the power of the central government. The rights of the people were considered God-given and unalienable. We have drifted far from that vision, and some of our founders saw this inevitable slide even in the arguments for the inclusion of the Bill of Rights. The entirety of Federalist Number 84 by Alexander Hamilton makes for excellent reading on the topic, but the core of the concern is this:
Thankfully, the court upheld the 2nd Amendment's broader vision and is being applauded by the many gun blogs out there. Combs Spouts Off highlights the interesting dissenting opinion of Judge Karen Henderson. Since the amendment begins with, "A well regulated Militia, being necessary to the security of a free State..." and the District of Columbia is not a state, the second amendment does not apply. Just out of curiosity, I wonder if she would rule the same way if it were the 14th Amendment under question. Since the District is not a state, does it have the power to
Clarification: Believe it or not, I do generally know what I am trying to say, but occasionally a question will make it clear that perhaps I wasn't clear enough that others can see what I'm trying to say. I have no issue with the decision in this case, and I like the reasoning of the two concurring judges. But note how much lies in grammatical issues. Did the founders intend to eventually have the right to gun ownership to be interpreted as a civic rather than individual right? The District and the dissenting judge are not coming out of nowhere with their arguments. They, too, base their view on the language of the second amendment. The amendment was intended to clarify restrictions on an already restrictive document. And yet is can be used to infer regulating authority of some sort.
Also, I'm not exactly arguing against the Parent Rights amendment. That may be a subject for a later post. At the moment, my objections are largely reflexive and based on the fact that if we don't do something to fix our judicial system, I don't think there is much that can be done to really protect our rights against a system that interprets so heavily.
Related Tags: second amendment, Parker v DC, rights
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were generated. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power.And what has the District of Columbia done? They see in the wording of the second amendment the right of the government to regulate the possession of firearms by private individuals.
The District of Columbia argues that the prefatory clause declares the Amendment's only purpose--to shield the state militias from federal encroachment--and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. Parker v. D.C. (PDF)So in "granting" a right that the Constitution never infringed, a local government sees regulatory authority. It isn't really any different than what the New Jersey Superior Court has done in their interpretation of the homeschooling laws in New Jersey. It is more than likely what will happen should we pursue enshrining education as a right. And it is what I am leery of in the Parental Rights Amendment.
Thankfully, the court upheld the 2nd Amendment's broader vision and is being applauded by the many gun blogs out there. Combs Spouts Off highlights the interesting dissenting opinion of Judge Karen Henderson. Since the amendment begins with, "A well regulated Militia, being necessary to the security of a free State..." and the District of Columbia is not a state, the second amendment does not apply. Just out of curiosity, I wonder if she would rule the same way if it were the 14th Amendment under question. Since the District is not a state, does it have the power to
...make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...[and] deprive any person of life, liberty, or property, without due process of law; [and] deny to any person within its jurisdiction equal protection of the laws?Or do our judges just get to rule as they see fit, so long it is what they deem to be a "sensible and workable view of legislation if the language at all permits that?" (State v. Vaughn)
Clarification: Believe it or not, I do generally know what I am trying to say, but occasionally a question will make it clear that perhaps I wasn't clear enough that others can see what I'm trying to say. I have no issue with the decision in this case, and I like the reasoning of the two concurring judges. But note how much lies in grammatical issues. Did the founders intend to eventually have the right to gun ownership to be interpreted as a civic rather than individual right? The District and the dissenting judge are not coming out of nowhere with their arguments. They, too, base their view on the language of the second amendment. The amendment was intended to clarify restrictions on an already restrictive document. And yet is can be used to infer regulating authority of some sort.
Also, I'm not exactly arguing against the Parent Rights amendment. That may be a subject for a later post. At the moment, my objections are largely reflexive and based on the fact that if we don't do something to fix our judicial system, I don't think there is much that can be done to really protect our rights against a system that interprets so heavily.
Related Tags: second amendment, Parker v DC, rights
