Wednesday, April 17, 2013

The Second Amendment Argument


I often write in reference to my conservative friends.  For the most part they are more like acquaintances with whom I work or have a pastoral relationship, so it can be a little tricky, as you well know.  You can imagine the issues: homosexuality, authority of scripture, climate change, environmental protection, taxes, and so on.  It’s the usual market basket of goods.

Of late it has become the Second Amendment.  Apart from the familiar claim in its many forms about good guys with guns protecting us from bad guys with guns, the Second Amendment argument asserts that: A) it establishes a well defined and unlimited right for individuals to bear arms; and B) any restriction on the Second Amendment will trigger a cascade of falling dominoes that will diminish or eliminate the rights established by the other nine amendments in the Bill of Rights.  It’s been played out on Facebook in any number of recent posts, most of them with such hostility that I wonder about itchy fingers on hair triggers just waiting for a chance to shoot someone, preferably someone like me who favors gun control legislation.

We all know the language of the Second Amendment, but just in case it’s slipped your mind, here is how it reads: “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.”  Now that seems fairly straight forward doesn’t it?  Except that one might ask if the predicate of the need for a well regulated Militia might modify what it means to infringe.  One might also ask if limiting or restricting certain kinds of weapons while allowing others constitutes infringement.  Even die hard gun rights advocates draw some limits: shoulder fired missiles, mortars, live hand grenades, and the like for instance.  So maybe the word “infringe” does not establish an unlimited right. I certainly don't think it does.

That brings us to the second part of the argument.  Most of my more conservative friends, I’m sorry to say, have never read the Constitution, don’t know very much about the other nine amendments in the Bill of Rights, and are generally unaware of the seventeen amendments that follow them.  If they did, they would know that none of them establishes an unlimited right.  Freedom of speech, for instance, is limited by restrictions on libel and speech that jeopardizes public safety.  The right to peaceably assemble and petition the government is limited by requirements for parade permits, registration as lobbyists, and, again, issues related to public safety.  Unreasonable search and seizure has been the subject of many court decisions that both allow and place restrictions on what that means.  And so it goes for each of the first ten amendments.  

The Constitution is a living document, and there is no such thing as original intent that has the authority lock its meaning into the mindset of a handful of 18th century men.  The Constitution means what the Supreme Court says it means, and through the years that court has said it means many things, even reversing itself after due consideration and the changing conditions of American society.

Now I know that you, my faithful readers, are intimately familiar with the whole Constitution and especially the Bill of Rights, but I am not.  I always have to be reminded because it’s not something I think about every day.  So just in case you also need to be reminded, here is a copy of the Bill of Rights, the first ten amendments.

Amendment [I]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment [II]
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.

Amendment [III]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment [IV]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment [V]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment [VI]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment [VII]
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment [VIII]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment [IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment [X]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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