As a gun rights activist, it feels more than a little strange to say this, but I have recently come to the conclusion that if the Constitution is truly the supreme law of the land (and we are all, of course, taught that it is), we don't really need the Second Amendment--at least on the federal level. Before my fellow gun rights activists cringe in horror at my blasphemy, allow me to explain.
Part of the beauty of the Constitution is that it specifically forbids the federal government taking powers not explicitly granted to it within the Constitution. This is spelled out in the Tenth Amendment, but even the Tenth is regarded as a truism, that adds nothing to the Constitution that was not already there. The powers granted by the Constitution to the federal government are actually quite narrow (not something one might guess from looking at the huge, bewildering array of federal laws now on the books--but, to be blunt, the vast majority of federal laws are unconstitutional), and do not include the power to regulate civilian ownership and use of firearms.
In other words, not only are all federal firearms laws unconstitutional, they would continue to be so even if the Second Amendment were repealed.
That doesn't mean I have any interest in throwing it out, of course. The enormous number of federal laws (both pertaining to firearms, and not) that are on the books, despite the government's utter lack of authority to impose them (the grotesque excesses of scope bestowed upon the Commerce Clause, for example) provides mute testimony to the vital importance of having some "back-up" protection for rights built into the Constitution.
I believe that where the Second Amendment is truly even more vital is in relation to state and local laws. Granted, as things stand today, the Second Amendment has not been held as being incorporated (by the Fourteenth Amendment) to the state and local levels, but I am at a loss as to why any part of the Bill of Rights can be disregarded by any level of government. How is a right "inalienable," if any part of the government can claim that only other parts of the government are obligated to honor it?
I contend that "shall not be infringed" means shall not be infringed by anyone--on the federal level, the state level, the county level, or the local level. That is why we need the Second Amendment.
Friday, May 18, 2007
Do we really need the Second Amendment?
Stumble it!
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2 comments:
Actually, 45superman, the Founders had this same argument when they drafted the Constitution. Some said that the Constitution limits the gov't to those express powers, and anything else was off limits. Others argued that without the Bill of Rights expicitly saying what the gov't canot do, the gov't would get sloppy in its determinations of how far to go in making and enforcing law. In the end, we got the Bill of Rights, and I tend to think it's a good thing. We at least have certain rights enumerated for us, so we may know, at least with those rights, when the gov't is overstepping its bounds.
Of course, the gov't has pretty much ignored the Constitution ever since Kommisar FDR's reign, so this is all moot for the most part.
This clause was the loophole (Article 1, Section 8):
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It is true that Monroe and others felt the Bill of Rights was not necessary. However, they did come to feel it necessary after Hamilton created the executive branch with the above words.
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