©
|
|
|
|
From An Attorney's Viewpoint True Meaning of Second Amendment by Brent R. Weil Gun owners facing ever increasing attacks by the media on the legitimacy of private firearm ownership are constantly looking for additional justifications for their possession. Recently, in light of the "assault weapon" controversy, some firearms enthusiasts have sought to justify the ownership of semi-automatic weapons by demonstrating their use in both hunting and competitive shooting events. While these recreational uses are not trivial, attempting to justify firearms ownership solely for recreational purposes undercut the close relationship between our freedoms and firearm ownership, as well as ignores the entire premise behind the Second Amendment to our Constitution. Even the slightest amount of historical or constitutional research demonstrates the following key facts which support our interpretation and application of the Second Amendment. 1. The first actual shots fired in the American Revolution occurred on April 19, 1775 when British troops were ordered to confiscate colonists' arms and ammunition in Lexington, MA.; Patriots 2. The patriots who fought in the American Revolution, including Samuel Adams, John Hancock, and Thomas Jefferson, did not overthrow the British through diplomacy but through armed insurrection using firearms of the period, which were similar to or identical to those of the occupying British forces; 3. A majority of the state constitutions drafted and ratified prior to the United States Constitution contained specific guarantees of the rights of the citizens to bear arms for their personal protection, as well as the collective defense of the state; 4. When James Madison proposed the initial Bill of Rights, including the Second Amendment, the Amendments themselves were inter-spaced within the actual Articles of the Constitution, and both the First and Second Amendments were specifically listed after Article 1, Section 9, which guaranteed individual rights, rather then other places in the Constitution dealing with standing armies and an organized militia; Rejected Change 5. The United States senate, at the time the Bill of Rights was ratified, specifically rejected a change in the language of the Second Amendment that would have limited the bearing of arms for the common defense rather than individual defense; 6. The most well known commentator who reported on the Bill of Rights contemporaneously with its passage, Tench Cox of the Philadelphia Federal Gazette, reported that, "The people are confirmed by the next article (the Second Amendment) in their right to keep and bear their private arms"; 7. The Militia Act of 1791, passed by the Senate during the same year that the Bill of Rights was ratified, defined the militia of the United States as consisting of all able-bodied males of at least 17 years of age and under 45 years of age. The Militia Act went on to divide the militia into two categories, the organized or "enrolled militia" (consisting of the National Guard) and the unorganized or "unenrolled militia" (consisting of members of the militia or public at large which are not members of the National Guard); Justice Story 8. In 1833, United States Supreme Court Justice Joseph Storey wrote in his "Commentaries on the Constitution" that , " The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary powers of rulers; and will generally, even if those are successful in the first instance, enable the people to resist and triumph over them"; 9. Contrary to anti-gun rhetoric, the United States Supreme Court has never ruled that the Second Amendment does not guarantee the individual right to keep and bear arms. To the contrary, the decision of U.S. v. Miller (1939) not only recognized the militia of being composed of all physically capable citizens, but also recognized such citizens, if summoned into service, will be expected to appear bearing guns supplied by themselves and of the kind in common use at the time for defense; 10. At present, some 43 states constitutions specifically recognize the citizens' rights to keep and bear arms both for collective and individual self-defense. Research During the past 20 years, there have been numerous scholarly articles and law review articles tracing not only the historical but also constitutional underpinnings of our forefathers' choice of language in drafting the Second Amendment, and such works concur upon the premise that the choice of language was clearly meant to confer not only the individual right of self-defense to all citizens, but also the collective right of defense against foreign and domestic enemies. While gun control advocates scoff at the historical and constitutional arguments supporting the interpretation of the Second Amendment, they have yet to produce any authority from revolutionary times which would support a contrary interpretation of the Second Amendment. Moreover, merely because certain constitutional rights and/or protections seem outdated or suffering from lack of use is no basis to abrogate or strike such rights. United States Supreme Court Justice Hugo Black stated in 1947 opinion in Adamson v. California, 'Its provision may be thought to meet ancient evils. But they are the same type of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many." Today, liberal columnists champion the constitutional rights of criminals and drug dealers by condemning recent Supreme Court decisions which allow for broadened searches and seizures and further restrict Miranda rights afforded to criminal defendants. Yet these same columnists, a day later, write almost scandalous articles attacking the Second Amendment rights of law-abiding citizens and portraying that such a position is only protecting "budding crooks, kooks, cranks and potential killers." At the same time they ridicule congressmen and legislators, as well as heads of state, who seek to vote their constituents wishes in opposing the many poorly drafted and all encompassing prohibitions and bans on "assault weapons." Additionally, these same columnists attack the National Rifle Association as if it was some type of beast running rampant without direction, while they apparently forget that that organization has two or three million members, making it one of the largest member-based organizations in the country. In short, many of the recent proposals regarding "assault weapons" or semi-automatic firearms constitute nothing more that a witch hunt of a degree and magnitude not seen since colonial times in Salem, MA. Prohibitions and bans have been discussed and implemented through the years in our country including both the prohibition of alcohol and drugs, with little actual success and the expenditure of millions if not billions of dollars. Anyone with common sense realizes that the only people who will obey these prohibitions or bans are the same law-abiding taxpayers which must also bear the expense of implementing the bureaucracy to attempt to cope with the misdirected legislation- legislation which, by its very nature and language, flies in the very face of the Constitution and/ or historical beliefs and ideals. Luckily, through the history of our democracy, constitutional rights have not been abrogated or merely cast aside at certain times in history, then we certainly would still have slavery, a much restricted freedom of speech and press, and most certainly a more restrictive and controlled police state. The Second Amendment, like all other Amendments or Articles to our Constitution, has a reason for being. The late Vice-President Hubert Humphrey recognized the importance of the Second Amendment by saying, "The right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible." Let us not forget from where our rights flow and repeat past mistakes by allowing constitutional rights to be cast aside. About the Author Brent Weil is an attorney in Evansville, IN, who practices insurance defense litigation. A partner with the law firm of Kightlinger & Gray, he is a native of Evansville. Weil has an undergraduate degree from Purdue University in biochemistry, where he also was a member of the Purdue Rifle and Pistol Team and was involved in intercollegiate competitions. He then attended Valparaiso University School of Law and graduated there in 1985 with his Juris Doctor Degree. He is licensed to practice law both in Indiana and Michigan, and is also a member of the Evansville, Indiana State, Michigan State and American Bar Association. Weil is a life member of the National Rifle Association and a supporter of the NRA Institute for Legislative Action. He also belongs to the Indiana Rifle and Pistol Association, as well as the Daniel Boone Gun Club in Evansville. He has competed in NRA-sanctioned rifle and pistol competitions and enjoys recreational shooting and hunting. Weil has been a sworn law enforcement officer with the Vanderburgh County Sheriff Reserves for the past three and one-half years. He presently serves as a lieutenant and training officer for new probationary officers and teaches classes in the Criminal Code, criminal procedure, and firearms safety in the Vanderburgh County Sheriff's Department Reserve Academy. This article can be reprinted provided credit is given. |
|
Send mail to jimbo@americanrebels.com
with
questions or comments about this web site.
|
