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Tuesday, October 14, 2008

A Quick History of the Second Amendment and A Comment Upon It

The Bill of Rights is a list of ten individual rights that all Americans have and for which the federal government cannot deny to any citizen. Through the legal doctrine of incorporation many of these rights have been applied to the states. Of all of the sacred rights held by the common American, the Second Amendment is the only one so diversely regulated by the states of our union that one state has little regulation beyond that passed by the federal government and another has regulated firearms beyond the reach of a majority of its citizens. Across the country, the First is read so stringently that religious displays are banned from any and all public land due to the reading of "Congress shall make no law respecting an establishment of religion", the Fourth is cited in opposition to intelligence programs that have the slightest ear listening to an American citizen. The Second, on the other hand, is the only right within the Bill of Rights that has been viewed by a multitude of scholars and intellectuals not as an individual right, but as a collective right. The only collective right on a list of sacred INDIVIDUAL rights. The collective view is a false one that can be disproved by history.

A Quick History

The history of the individual right to arms goes back to 12th century England where all men, including serfs, were required to own a weapon. At that time the local militia was invaluable to law and order, as well as military operations. It was of this atmosphere for centuries until 1671 when the British Parliament restricted arms by property accumulation. King James II outright banned arms for Protestants in 1686. It was reversed three years later by British Bill of Rights:
"That the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." [1]
This right passed on to British colonists and was part of British common law, which is an integral part of our founding laws.

In 1776, the Virginia Declaration of Rights (largely written by George Mason) held in Section 13:
"That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power." [2]
When Shays Rebellion proved that the Articles of Confederation were too weak to hold the union together the Constitutional Convention was organized and two factions appeared: the Federalists, who wished to pass the new founding legal document, and the Anti-Federalists, who opposed it on fears it will destroy democracy and liberty. The Bill of Rights came out of a compromise of these two sides. The original Bill of Rights, as brought to the floor of the First Congress in the House of Representatives, was not a collection of constitutional amendments, but new sections to be inserted into the text of the Constitution. The original text of what became the Second Amendment was as read:
"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." [3]
The text was to be inserted in Article I, Section 9, between Clauses 3 and 4. Article I, Section 9 lists limits on Congress (individual rights), NOT collective rights or rights of the state or federal governments. After several months and several revisions, the Second Amendment was ratified as:
"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." [4]

It would not be a generalization to say that a great many of those who are in support of the view of a collective Second Amendment are the same who in support of the stringent individual view of all the other Amendments in the Bill of Rights. The promotion of individual rights is not something to be attacked with. Its is the denial of an individual right (a right wholly supported by history and law) based on an emotional revulsion to the tool the right protects that is firm ground for contention. How can one truly call oneself a believer in the sacredness of the individuals rights of all mankind when you pick and choose which basic legal rights one believes in?

I believe the rights that are protected in the Constitution, the Bill of Rights and subsequent amendments are for each and every individual American citizen and legal resident. There can be debate about other rights derived from the amendments (abortion, marriage, etc), but the ones enshrined are the ones are that our Founders, our past leaders, representatives and citizens believed so important, so essential to the daily life, liberty and happiness of an American citizen that it had to be protected from infringement by individuals, cities, states and the federal government. The second amendment, our right to keep and bear arms, is one of those rights. Like it or not.

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