Tag Archives: 2nd Amendment

Head, meet Wall

Law, Politics, Rants,
USA Constitution
U.S. Constitution

Once more I am moved to bang my head against the wall and talk about gun violence. I wish to talk about why someone/anyone’s 2nd amendment right to own any gun they wish trumps all other rights we have. An surprise it is logical but not reasonable.

The right to own any kind of gun is superior to all other rights because of the basic postulate the person starts with. Most of the time this postulate will not be acknowledged but it is there none the less. It is simply stated as follows “I get to do what I want to do because I want to do it.”

This translates into the debates on rights simple as “My rights are superior to everyone else’s rights.” Therefore your right to life must give way to my right to own any gun I want. This works if and only if a personal rights have either a Hierarchy or are unequal. Many people who have not studied the history and evolution of thought on constitutional rights fall into. No right is superior or takes precedence over any other right. They are all equal. The problem is when they come in to conflict. Or when someone uses a right to do wrong. Usually these conflicts are easy to identify when they happen. Unfortunately the misuse of guns it is not.

The other problem we have to deal with is what do we do when a right is misused? Usually the law try’s to make whole, again, when the right is miss used. Like damages for libel/slander when the right of free speech is misused. Again, unfortunately, when a gun is misused it is often impossible to make whole the victim of the miss use. How do you restore life to the dead, or an arm, leg, and or eye?

So I ask you, what should we do? The misuse of the 2nd Amendment right to keep and bear arms all to often has irreparable effects and the victim can not be made whole no mater what we do?

Another Modest Proposal

Politics,
2nd Amendment on a scroll

Given the recent shooting incidents I should like to put forward my idea for what can be done. I have taken in consideration the McDonald v. City of Chicago in as many of the relevant court rulings as I can. All these proposals can be implemented by changes to the National Guard and Conscription laws.

1: All persons who own or possess arms (guns) shall be enlisted in a State’s Militia

This would be limited to persons between the age of 18 and 65 (or the current age for SS retirement eligibility).

2: State Militia shall be required to attend two consecutive days, each month, of formal training

The monthly training of the State Militia shall be detailed in the State National Guards regulation and shall meet DOD training standards.

3: No person not enrolled in a State Militia shall be subject to conscription until all persons in the State Militia has been called into active duty by the National Government

This should be implemented in such a way as to allow those members of the State Militia that are unfit, physically or mentally, for active duty to be counted as having been called for active duty.

4: Any and all unlawful actions taken by a member of a State’s Militia evolving arms (guns) shall be subject to military justice as it apples to active duty Militia

My Thoughts on the Second Amendment

Law, Philosophy, Politics, , ,

2nd Amendment on a scroll

Let’s be clear here, I am a student of Constitutional  Law, I am not a scholar nor a jurist (practicing or otherwise).  I have studied and followed Constitutional Law since I was first introduced to my first Supreme Court decision in the 12th grade (way back in 1968).  I graduated collage with a degree in Political Science, specializing in Jurisprudence (Law) with the hope of become a Constitutional  lawyer .  It didn’t happen, I became a programmer.  So that said, I love talking about the Constitution, no I’m not an expert but I do understand it just a bit better than most.

To move on, please read the image above.  It is an accurate rendering of what is in the Constitution (feel free to check).  Next I’d like to share with one of the first things my first Professor of Constitutional Law beat into my head.  “There is NOTHING in the Constitution just for show.  Everything is important and has bearing on what is being said.” For me this means that while the Constitution is a beautiful work of rhetoric nothing in it simply rhetorical.  More on this later.

Next, like all American Citizens, I reserve the right to my own interpretation of the Constitution.  BUT, the Supreme Court of the United States has the last word in how the Constitution is applied in law.  I can disagree with SCOTUS, but in court they win.

To start, here is a list of SCOTUS cases dealing with the 2nd Amendment .  All the cases are important but some are more important than others.  I have read both the brief given with the list and the cases themselves and the briefs seem good to me but feel free to send me you views.  As you can see that while the debate over the 2nd Amendment has been going on for sometime, it really wasn’t under debate before 1875.  I think that is significant, for 88 years there was little dispute on just what it meant. Just a few of the questions now being discussed:  What does “Malitia” mean?  What did it mean in 1786 and what does it mean now?  What does  “well regulated” mean, again 1n 1786 and new.  What does the word “Arms” mean?  What does it encompasses, all weapons and weapons systems or just some?

So, you can see the problem we are facing just with the words.  I shan’t go into the problems with all of the different legal philosophies on how to interpret the constitution, other than to say there are more than just “originalizem, Texturalizm, Intentualizm, Pragmatizium, and Natural Law. (Please see this link for details.)  First because they are all complex and secondly I know of know one who ever follows them completely.

So what do we do?  All we can do is follow the decision(s) of SCOTUS.  We can also demand and motivate SCOTUS to make good Law.  That is law that is clear, concise, capable of being enforced, and, hopefully just to all.  To this I say that I hold that  District of Columbia vs Heller is not very good law.  While it clearly stats that the right of an individual to keep and bear arms is a fundamental right and any law has to pass the “strict construction” test it does not supply any kind of example of what this test should be.  An while SCOTUS has c learifed that in the case of the 2nd amendment Arms means Bearable Arms, it has yet to give a clear indication of what Arms fall under the title of Bearable Arms Arms.

Just think of what might have happened if in Las Vegas instead of modified simi-automatic rifles being used a RPG or just a basic 40mm  grenade launcher had been used?  Both are quite capable of being born by an single individual, are they considered Bearable Arms?  I don’t know and the court has yet to say?