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The right of the people to keep and bear arms shall not be infringed

March 20, 2008
By Vincent Gioia

second_amendment.jpgThe U.S. Supreme Court heard arguments recently in a case concerning a law in the District of Columbia that essentially bans ownership of guns. Dozens of briefs were filed for consideration by the court, including one by the Bush administration that seemed to say "yes, people can own guns, but we (the government) have a right to put restrictions on gun ownership". Well, that's not what the constitution says.

The Second Amendment of the constitution concerns the right of the people to keep and bear arms. The country's founders thought this right so important it is included in the first ten Amendments constituting the Bill of Rights, without which the constitution would not have been ratified by the original thirteen states; the fact that it is the Second Amendment and not the 10th shows how important this right was regarded.

In the 1,700's Americans were under the rule of a despotic government that displayed its power in many ways including imposing unreasonable taxes on its "colonialists". Many Americans of the time either came to this land to escape government persecution or were children of those that did. Those brave men having successfully fought a war against all odds to form a new free country were not about to leave posterity in the same situation from which they escaped or lived under during their time as subjects of a king. The only way they succeeded in the war was by defending themselves against a tyrannical government through the force of arms. For this reason the Second Amendment was deemed essential to freedom then and in the future.

As our country drifted away from the values held dear by our founders, all sorts of government controls have been effectively imposed upon its citizens. The limitations the constitution set upon the federal government have been consistently and continually expanded by congress itself, the executive branch and most despicably by the judicial branch of the tripartite government having supposedly equal powers established by the constitution. The pity is that this was done not in the dark of night but in the light of day, and was accepted by the people because it was cleverly done incrementally; one small intrusion after another sanctioned by the courts and especially by the U.S. Supreme Court, the final arbiter from whom there is no appeal.

This then is the background for a decision expected this spring as to whether the constitution means what it says or what constitution revisionists want it to say to increase the power of the federal government. Interestingly, these same people will readily find some basis for legal concepts they want to create but are unwilling to accept the constitutional language as it is when it is applied to a right they do not wish us to have. The Second Amendment establishing the right of the people to own guns is just one example of the latter.

The language of the Second Amendment is simple enough.

"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."

Some gun control socialists wishing to disarm the people ignore the word "shall" and instead focus on the preamble reference to a "militia". They would have us believe that the amendment only applies to those in the military and not to all individuals. How absurd is that! If this was the intention surely those writing the constitution were capable of so expressing the provision. The brief filed by the Gun Owners of America in this case says it best:

"Thus, the amendment's "well regulated Militia" encompasses all citizens who constitute the polity of the nation with the right to form their own government. The amendment's "keep and bear Arms" secures the right to possess firearms such as fully-automatic rifles, which are both the "lineal descendant(s) of . founding-era weapon(s)" (applying a 2007 court of appeals' test), and "ordinary military equipment" (applying a 1939 Supreme Court standard).

No government deprives its citizens of rights without asserting that its actions are "reasonable" and "necessary" for high-sounding reasons such as "public safety." A right that can be regulated is no right at all, only a temporary privilege dependent upon the good will of the very government officials that such right is designed to constrain."

On this point Chief Justice Roberts made a cogent comment during questioning of counsel: "If it [the Second Amendment] was limited to state militias, why would (the drafters) say 'the right of the people?' In other words, why wouldn't they say 'state militias' have the right to keep arms?"

Justice Anthony Kennedy, often the swing vote in the divided court, also said he believed the Second Amendment covered a "general right to bear arms" and that the Amendment was rooted in the concern for people to have the right to defend themselves.

The "right to keep and bear arms shall not be infringed" is unequivocal; federal, state and local governments should not be able to chip away at this right with restrictions or limitations of any sort for any reason.
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Vincent Gioia is a retired patent attorney living in Palm Desert, California. His articles may be read at www.vincentgioia.com and he may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. .
Related:
http://www.arms2armor.com/2ndamendment/2ndamendment.htm

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