July 07, 2009

More Constitutional Argument...

The “Bill of Rights” as enumerated in the first ten amendments to the Constitution is what I see as exactly that – a Bill of Rights – for the people. Throughout the Constitution, the language is very specific and certain words are given specific meaning through specific use and repetition. One example is the use of the word “people”. Every time that it appears, it lends itself to mean the individual people of the United States. As the Bill of Rights is generally accepted as a set of limits on government, and not the people, in fact securing the rights of the people, one specific part seems to be a politically sticky point.  The Second Amendment is an issue of States rights and in recent years has become a nexus of Federal law and agencies that are in effect unconstitutional.

While Art I Section 8 and Art II  Section 2 of the Constitution specifically spell out regulation and use of the militia, in that Congress can call out the militia to Federal service as well as being responsible for providing for organizing, arming, and disciplining” the militia and the President would then have command jurisdiction. However, the Second amendment states that a “well regulated militia” is required to insure the security of a Free State – then it refers to the right of the PEOPLE to keep and bear arms.  I would submit that the Second is stating that the many States remain free through the maintenance of militias and that the people are to be armed as well.

Further, the Ninth Amendment states that the listing of rights is not to be construed as a limit on the rights of the people. The Tenth Amendment even limits the powers of the Federal Government to those powers spelled out in the Constitution, reserving all other power to the States or the people. This makes it obvious to me that the framers of our government were adamant that the Federal Government was to be tolerated only if it were limited.  So if the right to keep and bear arms is a right of the people and the militia is the purview, primarily of the states – why do agencies like the Bureau of Alcohol Tobacco, Firearms and Explosives (BATFE) and laws like the National Firearms Act (NFA) exist?

It could be argued that the closing language in Art I Section 8, including “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” could be construed to allow for Congressional oversight in almost anything. However, the entire Constitution has to follow some sort of abrogation with the ratification of amendments. Thus, would it not be true that the Tenth Amendment, limiting Federal powers, also limits this statement? Would the Tenth, if taken seriously, not also severely limit much of the modern incarnation of the Federal government’s power.>>

The Second Amendment seemed to be at least tacitly accepted as a non-issue as witnessed by a lack of cases before the Supreme Court any earlier than the Civil War. Even then, the SCOTUS was specific in denying the Federal government’s ability to infringe upon the right to keep and bear arms (U.S. v. Cruikshank - 1876). The ongoing battle against lawful ownership of firearms continues to rage as the Congress passes bill after bill, expending the role, size and jurisdiction of the Federal government in patently unconstitutional ways. The Second Amendment is the most maligned, misrepresented and infringed upon “right” guaranteed by the founding fathers.

Posted by: Misha Moriarti at 08:12 PM | No Comments | Add Comment
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