Hi everyone. As always, thanks for checking this out. I promised more posts, so here we go.
There’s some significant changes coming. Whether you’re conservative or liberal, Republican or Democrat, left or right, your lives are about to change. Some things will be easier to come by, some more difficult. You’ll agree with some and disagree with others. There’s no denying it. Some will say that “that’s every four years”, but I disagree. With the Republicans and Democrats moving so much further apart, the only thing that kept the Presidents in check since 2014 was a split Capitol. That’s now passed, the Democrats will do almost all that they want.
To be perfectly transparent, I’m a registered Republican, I have been since I realized that Independents were missing out on part of the process (we have closed primaries in my state). As I’ve gotten older, had kids, formed opinions independent of others, etc. I’ve become more conservative. I consider myself right of center, but the center is still in my neighborhood, so to speak. I have some common ground with some liberals, I’m very close with some. But by and large, we avoid the hot button topics, because we just won’t have a good day.
Having said that, this is my site, so I’m going to touch on one of them right now. Gun control. I own several firearms, but I’m by no means what would be considered a “gun nut”. I’m a Second Amendment supporter, but I understand some of the restrictions currently placed on the firearms community, even if I believe that they do infringe on the Second.
Over a week before the inauguration of the new administration, Democrats have “pre-filed” four bills apparently aimed at gun control. All four were sponsored solely by Sheila Jackson Lee, a Democrat from the 18th district of Texas, in the Houston area. None have text in the filings, but judging by the titles, we won’t be surprised. There are several more at the state level that I will go over later, but let’s start with these.
H.R. 121 – To provide for the hiring of 200 additional Bureau of Alcohol, Tobacco, Firearms and Explosives agents and investigators to enforce gun laws.
H.R.125 – To amend title 18, United States Code, to provide for a 7-day waiting period before a semiautomatic firearm, a silencer, armor piercing ammunition, or a large capacity ammunition magazine may be transferred.
H.R.127 – To provide for the licensing of firearm and ammunition possession and the registration of firearms, and to prohibit the possession of certain ammunition.
H.R.130 – To require the safe storage of firearms and ammunition, and to require the investigation of reports of improper storage of firearms or ammunition.
I have decided that each of these deserve their own discussion, mostly due to my proclivity to go off on tangents. That will start tomorrow.
Today, I want to go over the Second Amendment, the way that I see it and some of the reasons that I feel that way. This may be long, but I’m trying to learn as much as I share.
There has been a lot of debate about the Second, so let’s start with the text, as it’s written.
“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.”
The debate rages on about the interpretation of the Second, more than any of the other amendments. There is some discussion about the First, but not nearly as newsworthy and I only bring it up because I like to use it as a comparison.
Regardless of where the commas are or how we currently define a militia, there have been some SCOTUS rulings that have set precedent and narrowed some of the discussions. I personally believe that “shall not be infringed” makes all laws that restrict firearm ownership unconstitutional. Having said that, there are some laws that clearly make sense. When the Bill of Rights was introduced, for instance, they would never have considered blacks or women to own firearms, but that has changed. I bring it up not because I agree or disagree, only because it shows restrictions, even then. SCOTUS has also allowed some restriction in modern times, felons, mentally ill, under age, etc. that make sense. I do, however, believe that some laws have gone too far. According to an article from 2019, Boston University counted 109 firearm laws in California alone. Other studies state different numbers and we could be here all day debating this, but the number of nationwide firearms laws is somewhere between 300 and 30,000. Even 300 seems a bit high to qualify for “shall not be infringed”.
There are several quotes from the framers of the Constitution and the Bill of Rights that can give us some insight into their meaning, such as:
Sam Adams
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87
This is the one that stands out the most to me. It is an opinion of one of the signers, stating the thought process that went into the formation of the amendment. It should be considered more often than it is.
Richard Henry Lee
“A militia when properly formed are in fact the people themselves…and include, according to the past and general usage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” – Letters from the Federal Farmer, Letter XVIII, January 25, 1788
Thomas Jefferson
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man” – this was a quote included in his “Legal Commonplace Book”. It’s originally from Cesare Beccaria’s Essay on Crimes and Punishments.
In a letter to John Cartwright in 1824, he wrote: ”The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”
James Madison
“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” I Annals of Congress 434, June 8, 1789
The last two are actually earlier versions of the amendment, before the final draft was agreed upon, but I think it shows the intent. I do recognize the argument the other way though, that they changed it because they didn’t want personal ownership to be the focus. You can form your own opinion there. I personally believe that the final wording was used to the importance of using these arms as a means to protect the country, but they also understood that there were possible restrictions needed that they had not foreseen, as was the case for some of the others.
Now I’d like to talk about the most important SCOTUS decisions, in my opinion.
Presser v Illinois, an 1886 ruling that isn’t listed on SCOTUS blog, but can be found here, ruled that the right was am individual right and not a right to form a militia. This one was new to me in this research and a pretty early indication that the right wasn’t necessarily related to a militia. It does state that local laws don’t fall under the Second, the Bill of Rights applies to the federal government, meaning Congress, exclusively. If you’re not familiar with it, I suggest reading about it.
United States v. Miller, a 1939 ruling that you can find here is another one that I hadn’t read before this was written. It states that “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Another one that might come up in the near future, unless there is new precedent that I’m missing.
DC v. Heller was the first time that the court chose to affirm that the rights granted in the Second extended to individuals for self-defense in the home. This may cause problems for one of the House Resolutions listed above. It’s very difficult to use a firearm for self-defense without quick access to it. If needed, there is very little time to react and prepare a firearm. I’ll get more in to my issues with that in an upcoming post. It also affirmed that there were some restrictions that were allowed, such as the mentally ill and felons, as discussed above.
McDonald v. City of Chicago essentially ruled that cities and states had the same responsibilities to abide by the Second as the federal government, which conflicts some with Presser, which makes sense as SCOTUS has overturned a number of state laws in the past, based on unconstitutionality issues.
Another interesting ruling is Caetano v. Massachusetts, which moves the amendment past weapons used in war and allows other self defense weapons (a stun gun, in this case) the same protections as firearms.
These are the big ones I could find, but there are many more. One in 1857 that said that “the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”, but was not used because the plaintiff didn’t have protection under the Bill of Rights because he was a negro. A 1980 case reiterated that felons could be restricted on many levels, including a restrictions on the right to own firearms.
According to Wikipedia, “The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.”
Now, I’m going to get into my personal opinions and my reasons for them.
Please eliminate the hunting discussion from this argument, it’s ignorant and irrelevant. The Second has nothing to do with hunting. Especially when you don’t understand firearms. As a matter of fact, if you don’t understand firearms, stay out of the discussion on either side. That includes people who don’t understand them, but still support them. If you are ignorant, you hurt the entire argument, either way. And yes, I know several hunters that swear by ARs for hunting certain game, stop saying they can’t be used that way.
Stop saying that it’s like “you can’t yell fire in a crowded theater!” First, you can still speak in a crowded theater, as long as you’re not irresponsible. Sort of like owning a firearm responsibly should be. Besides that, there is no law saying you can’t yell “fire”. The law is that if it causes injury, you may incite a riot or endanger others. Similar to owning a firearm and not using it to injure others unjustly, murder is already illegal in any form.
Stop saying that the Second only protects weapons available in the 18th century. SCOTUS has disagreed and it doesn’t make sense. The First applies to TV and radio, even though the framers couldn’t have imagined those mediums.
Lastly, and this doesn’t go directly to the amendment, stop calling ARs “assault rifles” or “weapons of war”. These are both made up, scary terms that gun control advocates use to turn people against them. Those people are either lying or they don’t know anything about firearms. I like to call mine a “defense rifle” because as long as I own it, I can be sure that it will never assault anyone. If it is ever used on anything other than paper or steel, it’ll be in defense of something that I feel is important enough to protect. My model and all of the civilian models out there have never been used in a war anywhere. My friend used to own a 1968 Camaro with a 230 straight six engine. It’s not a muscle car even though it looks similar to the SS with a 396. The Chevy Lumina that your parents owned wasn’t a race car, even though Dale Earnhardt drove one in Daytona. It’s the same with rifles, some may look like the ones used by the military, but they aren’t.
Thanks for taking the time, if you’ve gotten this far. Sorry for the length. I’m not going to try to convince you of anything, I’m just hoping that if you are against firearms, you use this information and do plenty of other research to form an educated opinion.
Enjoy the time you have….