THE SECOND AMENDMENT RIGHT TO BEAR ARMS
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. Rarely is the Second Amendment discussed in Constitutional Law textbooks, and other than for a slew of Internet resources (see below), many people simply ignore it or shy away from the intense ideological debates. In this lecture, we cover both Second Amendment jurisprudence and Gun Control controversies. There are no known rights binding on the states as part of this Amendment. The Second Amendment has NOT been incorporated into the Fourteenth Amendment. This means two things: the right of the people to keep and bear arms is not a fundamental personal right; and state and local governments are free to devise any sort of gun law they choose. Currently there are over 20,000 existing gun laws throughout the U.S., many of which are unenforceable because of the sheer numbers involved. Estimates are that less than 5% of the population obey their local gun laws, and there's a lot of guns out there, over 220 million in civilian hands. Given that the U.S. population is only 260 million, if each person were given a gun, that's 85% of the population that is armed. But of course, it's typical to own more than one gun, so the more conservative estimate is 50 million people, which amounts to about 20% of the population being, well, heavily armed. How many guns a person owns is their business. From one point of view, it's better if every home in America is protected by at least one good shotgun. From another point of view, it's better all the guns were kept in an arsenal or armory where citizens could get to them. We are more familiar with the latter concept because that's what the military does. What we are NOT familiar with is what the civilian militia should do.
THE MILITIA CLAUSE
The Second Amendment contains two clauses, the Militia Clause (A well regulated Militia being necessary to the security of a free State) and the Right to Arms Clause (the right of the people to keep and bear Arms shall not be infringed). It's customary in Constitutional Law to point out that the second clause is controlled by the first clause. This is expressed technically by saying that "the independent clause is prefaced by a dependent phrase supportive of a structuralist interpretation." You may have to go back to the lecture on constitutional interpretation to review what structuralism is, but as a reminder, it has to do with seeing the Constitution as a living document, a guide to social order, a vision or mission statement. Structuralist interpretation always looks for the good for the whole system of society, so security of a free state is more important than the right of the people. The syntax involves what some people call "reconstructed logic" (making sense out of what doesn't make sense) in that a dependent or subordinate clause is more important than an independent or main clause. Scholars such as Kates (1983) and Levinson (1989) have referred to this interpretation in Constitutional Law as a "national embarrassment." At the time when it was ratified in 1791, the Second Amendment was intended to have at least two security purposes other than a well-regulated militia: (1) a practical purpose, to protect people from thieves, bandits, Native Americans, and slave uprisings (the Jeffersonian position); and (2) a political purpose, to remind the rest of the world that the United States is well-armed (Hamilton and Madison's position in Federalist Paper #46).Cottrol and Diamond (1991) have recently suggested the idea that it was "White Man's Law", intended to prevent slave insurrections. Madison's original proposal read something like this: 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 baring arms shall be compelled to...
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