The Right to Bear Arms

Whatever your stance on the 2nd Amendment, it’s hard not to see how contentious the topic is. Even my own discussions on X/Twitter bear this out. However, the topic is much more nuanced than the simplistic rhetoric that both sides of the issue let on. Possibly even realize; the law is not easy and is seldom, if ever, straight-forward. Let’s have a closer look at the Right to Bear Arms.

Roll of the Courts

Whether it is constitutional law or ordinary legislation, it is impossible to account for every little applicable situation that may arise. This is the reason the courts exist; if it were as simple or absolute as some people imply, there wouldn’t be a need for the courts. We could just say that is illegal, and everyone would have no choice but to agree.

But we often don’t agree, and sometimes the law is a bit unclear, so the courts must interpret the law to see how it applies to the given situation. The 2nd Amendment is no exception and has been the subject of my court cases. These legal decisions are binding, sometimes in only one instance but other times in every instance thereafter.

History is Important Too

Judges draw on historical law and precedent as well, which are in most cases relevant to the issue at hand. Despite some beliefs to the contrary, judges do not legislate from the bench. We do not have a Direct Democracy but a Representative Democracy called a Republic. The courts are our only means of checking the government’s power, and the decisions of the court cannot be ignored. Even if they’re inconvenient.

District of Columbia V Heller 

• “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”
• “Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.”

Operative Clause

• “Right of the People. …
• “All three of these instances (1st, 2nd, and 4th Amendments) unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some corporate body.”

State Constitutions Agree

• The right of the citizens to bear arms in defense of themselves and the State shall not be questioned. Pennsylvania Constitution, Article I, Section 21 
• Every citizen has a right to bear arms in defense of himself and the state. Connecticut Constitution, Article I, Section 17. 
• A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Deleware Constitution, Article I, Section 20 

There are Two Classes of Militia

   b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Conclusions

The 2nd Amendment was and is still intended to be an individual right and not a collective right as some people suggest when they mention a “Well Regulated Militia.” This issue has been decisively decided by the several states and the SCOTUS. An unorganized militia is lawful but is subject to the authority of the government of the state therein, or the POTUS.

There are indeed many problems surrounding firearms, particularly semi-automatic versions of military Assault rifles. School shootings and other mass murders, but in my opinion, using this as an excuse to diminish the rights of law-abiding citizens is not the answer.

Solutions can be found that are amenable to both sides of the issue. It’s time to start looking for them like civilized adults.