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Part I: Barack Obama on gun control: Second Amendment
by Joseph Earnest January 14, 2013
Newscast Media WASHINGTON, D.C.—The biggest debate going on is the debate on gun control that has escalated within the past few weeks. There is talk of Barack Obama using his executive powers to tackle the gun issue, while others wish to see restraint being exercised on this issue. Either way, the debate seems to be driven by emotion, rather than reason or critical thinking. Having waited for weeks without reviewing the ongoing debate, I will now present a judicial review on this subject that has already been settled in the United States Supreme Court.
It would be counterproductive for government to attempt to abrogate well-settled decisions and case law, and also to violate the Constitution's Second Amendment that public officials swear to protect.
When Barack Obama took the oath of office four years ago, and when he does so again on January the 20th, the following are the utterances made:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Any Executive Order Obama issues that infringes upon the US Constitution's Second Amendment, would not only be a violation of the oath he took publicly, but also a blasphemy upon the Constitution he swore to preserve, protect and defend.
The Supreme Court presented a very intellectual argument and ruling in 2008 and deconstructed the Second Amendment in regard to the selective banning of firearms in the United States Supreme Court, 554 U. S. ____ (2008)) decision. I will present highlights of the ruling, in simple terms, in a two-part series, using the words of the justices.
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State (prefatory clause), the right of the people to keep and bear Arms, shall not be infringed (operative clause)."
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." See J. Tiffany, A Treatise on Government and Constitutional Law §585,p. 394 (1867)
Logic demands that there be a link between the stated purpose and the command.
Breakdown of the Operative Clause:
(i) Right of the people —We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
(ii) To keep and bear Arms —The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson).Timothy Cunningham’s important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
We turn to the phrases "keep arms" and "bear arms." Johnson defined "keep" as, most relevantly, "[t]o retain; not to lose," and "[t]o have in custody." Johnson 1095. Webster defined it as "[t]o hold; to retain in one's power or possession." Thus, the most natural reading of "keep Arms" in the Second Amendment is to "have weapons." "Keep arms" was simply a common way of referring to possessing arms, for militiamen and everyone else.
At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S.125 (1998).
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves and the state" or "bear arms in defense of himself and the state." It is clear from those formulations that "bear arms" did not refer only to carrying a weapon in an organized military unit.
Meaning of the Operative Clause.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.
*(What the Supreme Court is saying is, the pre-existing right, is the right to self defense).
The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . ." Continue to Part II: Breakdown of the Prefatory Clause>>
Related story:
Part II: Obama on gun control: Breakdown of Prefatory Clause
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