Second amendment question

[orpington]

Someone else in another thread brought this up. I never thought of it this way, and the individual is correct. As follows, but first things first:

Here is the second amendment, as it appears on Wikipedia:

"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."

I realize that there have been other variations and much debate as to what it actually means, especially with the placing of commas, which can vary the interpretation, BUT:

The individual in another forum mentioned that "to keep and bear arms" is a "right", which doesn't seem debatable to me.

Merriam-Webster defines a "right", as follows, relative to what it states in the second amendment, under the "simple" definition. (For further discussion(or obfuscation), refer to the following: http://www.merriam-webster.com/dictionary/right ): something that a person is or should be morally or legally allowed to have, get, or do

I have a concealed carry "license", which is defined, as follows: an official document, card, etc., that gives you permission to do, use, or have something (This is the simple definition. For further clarification, refer to the following: http://www.merriam-webster.com/dictionary/license).

So, how did the right to keep and bear arms ever become a topic of so much debate? If I have the right, which is something I am morally or legally allowed to have, why do I need a license, which gives me permission to do, use, or have something, which, in my case, is carry a concealed weapon. If the right to keep and bear arms is morally or legally allowed, how can background checks, paperwork, etc., when it relates to the purchase of a firearm even be constitutional? That is, why do I need permission to exercise a right?

Something to think about. I now think of this in a whole different manner.

 

[Sam1911]

Well, that's a VERY deep topic but it boils down to this:

A right is whatever the prevailing society says it is. Our founders wrote of "natural" rights and those granted by "nature's god" but that's pretty much simply a rhetorical way of adding weight to their opinions. What "rights" are or were, and who those rights really applied to was certainly up for debate before their time, during their time, and has changed a fair bit since their time.

Is it somehow morally right to deny a slave the right to possess deadly weapons? Well, few of the founders of this nation would have been willing to even consider the idea. After all ... wait a minute here ... a slave doesn't have the RIGHT to ... much of anything. How did the right of a slave to possess a weapon, or decide not to serve his master become a topic of so much debate? Heck, how did the question of a citizen's RIGHT to own a slave become a topic of so much debate?

A woman, in most countries now but not all, has the right to vote for her political representatives. But that's been a LONG-fought struggle to get and the vast majority of the peoples of history would have laughed at the idea. So how does the RIGHT of a woman to vote ever become a topic of so much debate?

As a certain prince of Denmark once said, "There is nothing either good or bad but thinking makes it so." And societies have been thinking about these questions of rights for millennia, and change their minds over time.

If the right to keep and bear arms is morally or legally allowed, how can background checks, paperwork, etc., when it relates to the purchase of a firearm even be constitutional? That is, why do I need permission to exercise a right?

Because in society, EVERY right is subject to some level of restriction. And we have a system of courts who's job it is to decide whether the right, or society's need to put limits on that right, prevails -- and to what degree. A right may be limited, but those limits must serve a purpose and may not be undue burdens. So far the Court has never agreed or held that requiring a permit to carry a gun, or a permit to purchase one even, is an undue burden -- though we're a bit closer to "our" way of seeing this than we've been before.

 

[Devonai]

I can only add that the debate over a de facto ban on possession is still raging in some areas in the US. NYC is a great example, with their permitting system amounting to a de facto ban for the vast majority of residents.

 

[Art Eatman]

Rights exist even in the absence of government. Governments have the physical power to restrict or deny rights.

Individually or collectively, people have the ability to interpret word meanings and phrase or sentence meaning in different ways--and people affect the actions of government.

 

[Frank Ettin]

Let's look at the legal reality.

What our Constitution states and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

The Founding Fathers assigned the role of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute enacted by Congress applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply....

It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

• Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.
  
  
• If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.
  
  
• Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:
  
  
  • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:

    ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...

    
    
  • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:

    ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  
  
• In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.
  
  But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):

  ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...

  
  
• In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller in 2008, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald in 2010, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[orpington]

Frank Ettin: Are you a lawyer? You write very well and what you say makes sense so I am just curious?

 

[Bobson]

^ Yes, he is - a retired lawyer, according to his bio. He's also discussed some of his experience in the past.

 

[Frank Ettin]

Frank Ettin: Are you a lawyer?.......

As Bobson says, I am a lawyer. I've been retired since 2007 but continue to satisfy my continuing education requirements and remain in "active" status as a member of the bar.

 

[vito]

A key determinant of what is and what isn't a right is the make-up of the Supreme Court. Conservative justices who consider themselves strict constructionists try to apply what they believe to be the intent of the Founders when they wrote the Constitution, to current issues. The liberals on the Court, who believe that the Constitution is a "living document" feel unbound by the words and intent of the Constitution, but see themselves as higher beings justified in the twisting and bending and worse of the Constitution to achieve a goal that they believe is part of the natural progression in a liberal society. While a generally conservative Court found that many of the new recovery programs passed under President Roosevelt were unconstitutional since they strayed far from the limited role of the Federal government outlined in the Constitution. That they later changed their opinion did not reflect some newfound insight, but merely was a surrender to raw political power by Roosevelt who threatened to, in effect emasculate the Court completely (and his Congress would have gone along with the plan). Compare that conservative Court to the liberal Court that "discovered" a right to privacy which is not stated anywhere in the Constitution, and then read into that concept the so-called right of women to have abortions, will of the people be damned.

So the simple truth is that our rights are only rights when the Supreme Court agrees that they are, and these rights disappear or are restricted when the Supreme Court deems to do so. Simple political power.