Thoughts On the Second Amendment and the Bill of Rights

Note: This is only my reasoned opinion, as an average citizen. I am not an attorney. Do not take this as legal advice. If you do, you will probably be arrested, since the courts and the government do not seem to agree with me. You have been warned.

Something recently struck me about the Second Amendment. It actually contains the boldest and most powerful statement of protection of any of the ten amendments that are the Bill of Rights. The phrase “shall not be infringed” is clear, concise, and says that not even the slightest restriction or regulation is to be tolerated. Think of this: an infraction is “the act or an instance of infringing” and an infraction is the smallest violation of law possible. Driving 20 in a 15mph zone is defined as an infraction. Nobody counts an infraction as a crime. But the Second Amendment is the only part of the Bill of Rights that says a right “shall not be infringed.”

Read all ten. You can find them here.

The First Amendment? It says “Congress shall make no law […] abridging […]” the rights listed. The founders did not say that the states could not do so. The First Amendment specifies congress, which, the way the Constitution was written and interpreted at the time, meant that it did not apply to the states.

The Third Amendment does not specify a right, but while it does limit a government action, it also limits that restriction. “[…] in time of war, […] in a manner prescribed by law.”

The Fourth Amendment limits it’s right, using the words “unreasonable” and “probable cause.” If the government has reason, or probable cause, they can search and seize and arrest with impunity.

The Fifth Amendment enumerates several restrictions on the government, but, except for the restrictions against double-jeopardy and self-incrimination, each of them has exceptions. Even self-incrimination is questionable – a comma instead of a semicolon places it grammatically within the effect of the “due process” exception. And nowhere does it specify these as “rights,” though they are understood as such.

The Sixth Amendment says “the accused shall enjoy” the rights listed. Nowhere does it say that these rights shall not be regulated.

The Seventh Amendment simply extends the right of trial by jury to civil cases. The amendment itself restricts this right to matters over twenty dollars (a ridiculously small amount, by today’s standards, but significant at the time).

The Eighth Amendment, while restricting the government, again never uses the word “right,” and is written in subjective terms (“excessive,” and “cruel and unusual”) which are argued regularly in front of the Supreme Court.

The Ninth Amendment simply protects rights that are not specifically stated in the Constitution, and the Tenth Amendment says that anything not addressed in the Constitution is reserved to the states or the people.

Nowhere in the Bill of Rights is a right protected as fiercely, and as specifically, as in the operative clause of the Second Amendment. “The right of the people to keep and bear arms shall not be infringed.” It specifies that this is a right, that it belongs to the people, and that it shall not be infringed. It allows no restriction, no regulation, and no debate. It does not limit this prohibition to the Federal government – it is a blanket statement. What does this mean?

It means that no gun control law passed by the federal government is constitutional.
Because it is a blanket statement, it means that the power to regulate or restrict guns is prohibited to the states, as well as to the federal government.
It means that no gun control law passed by a state government is constitutional.
It means that no government can tell you that you can’t carry your gun concealed, or into a business that serves alcohol, or onto school property. Your rights apply everywhere.
It means that the government cannot restrict the type or number of guns that you can purchase.

It means that, while the government cannot restrict or regulate who can have guns, what kind of guns you can have, or where you can carry your guns, it can bring charges against you based on your actions.
If I fire my gun into the air, I can and should be charged with reckless endangerment. I have recklessly done something which could injure or kill someone. If I throw a knife in the air in a crowd, it could also injure or kill someone, and I can and should be charged with reckless endangerment. A bullet travels farther than I can see, so no crowd is needed to make it reckless and dangerous.
If I shoot and kill someone, and it was not done in defense of myself, my property, or someone else, that is murder. It is still murder if I kill them with a knife, or a bat, or my bare hands.
If I point my gun at someone to frighten them into giving me money, I have committed robbery, and should be punished accordingly. It is still robbery if I used a knife, or a bat.

No gun control law is constitutional. The wording of the Second Amendment is absolute and unyielding. Unfortunately, no court in this nation recognizes that fact today.

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.” U.S. Constitution, Amendment 2

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