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Does the Second Amendment Even Exist?

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Gun control was going to be a campaign issue even before the Orlando Pulse nightclub shooting back on June 12.

Donald Trump was endorsed by the National Rifle Association (NRA) after he spoke at the group’s convention in May and remarked that “the Second Amendment is under threat like never before” and that “crooked Hillary Clinton is the most anti-gun, anti–Second Amendment candidate ever to run for office.” (This is a change from Trump’s previous position, as articulated in his book The America We Deserve [2000] — support for the “assault weapons” ban then in force and in favor of a “slightly longer waiting period to purchase a gun.”) While speaking the next day at a conference on gun violence hosted by the Trayvon Martin Foundation, Clinton responded that Trump’s position on the issue was “dangerous,” “way out there,” and “no way to keep us safe,” and would lead to “more hatred and violence in our streets.”

Since the mass shooting in California late last year, Democrats in Congress have been pushing “no-fly no-buy” legislation sponsored by Sen. Dianne Feinstein (D-Calif.) that would prohibit anyone on the federal “no-fly list” from purchasing firearms. But the ACLU — which is usually in lockstep with the Democrats — opposed the legislation because of “deep concerns”  “about legislative efforts to regulate the use of guns by relying on our nation’s error-prone and unfair watchlisting system.”

Two days before the Orlando shooting, a new gun-control initiative by veterans was announced. Veterans Coalition for Common Sense is led by Navy combat veteran and former astronaut Capt. Mark Kelly and his wife, former U.S. House member Gabrielle Giffords, who was shot and seriously wounded during a mass shooting in Arizona in 2011. The advisory committee includes retired three- and four-star generals and admirals, including David Petraeus, Michael Hayden, and Stanley McChrystal. The coalition urges “our elected leaders to close the loopholes in our background check laws that let felons, domestic abusers and the dangerously mentally ill buy guns without a criminal background check.”

After the Orlando shooting, Democrats, immediately and predictably, called for more federal gun- control measures. Barack Obama said he wants to reinstate a national ban on “assault weapons” instituted under Bill Clinton that expired in 2004. House Democrats even staged a “sit-in” over the failure of Republicans in the House to vote on gun-control measures.

The Second Amendment

Does the Second Amendment even exist? Politicians, the news media, and Americans persuaded by them are clamoring for the federal government to “do something” about gun violence. Organizations are urging Congress to pass more gun-control legislation. But everyone is not just ignoring the Second Amendment; they are acting as though it doesn’t even exist.

The Constitution as it was ratified by the states in 1787 and 1788 contained neither the Second Amendment nor any language about guns. The Second Amendment was added to the Constitution as part of the Bill of Rights (the first ten amendments to the Constitution), which the requisite number of states approved on December 15, 1791. The twenty-seven words of the Second Amendment read: “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.” The Second Amendment has no exceptions. It doesn’t say that the right of the people to keep and bear arms shall not be infringed — except when it comes to “military” weapons, unusual weapons, future weapons, powerful weapons, national security, emergencies, “reasonable” regulations, or extenuating circumstances.

Still, the Second Amendment has engendered more controversy than any other amendment to the Constitution except perhaps for the Fourteenth. Liberals and Progressives generally try to define the Second Amendment in terms of the right of the states to maintain militias. They don’t believe that it protects an individual right of “the people” to keep and bear arms. The phrase “the people” also appears in the First, Fourth, Ninth, and Tenth Amendments that were added to the Constitution, as mentioned above, at the same time as the Second Amendment. The First Amendment states that Congress shall make no law abridging “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is impossible that “the people” in the Second Amendment does not refer to the same group termed “the people” in the First, Fourth, Ninth, and Tenth Amendments. The state militias were made up of a portion of “the people,” who had the natural right to keep and bear arms.

But even if the Second Amendment applied only to the states’ ability to maintain militias, as many liberals and progressives say, or as subject to some other interpretation that limits its language to militias, that would still not affect Americans’ right to keep and bear arms. It would just be an amendment related to state militias.

The Second Amendment is actually irrelevant anyway. After the shooting in Orlando, Drexel University law professor David Cohen proposed in an article on the Rolling Stone website that the Second Amendment be repealed (“Why It’s Time to Repeal the Second Amendment,” June 13, 2016). According to Cohen, the Constitution and the Second Amendment are “wrong.” Therefore,

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

The liberty of some to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered. It has for too long, and we must now say no more.

The second amendment must be repealed, and it is the essence of American democracy to say so.

Okay, suppose the Second Amendment were repealed, as the good professor proposes. It could happen. There was a time in American history when a constitutional amendment was actually repealed. The Eighteenth Amendment that instituted Prohibition in 1920 was judged to be “wrong” and repealed by the Twenty-First Amendment that was ratified in 1933. Cohen even brings that up in his piece. But even if there were no Second Amendment, the federal government would still have no authority to ban, regulate, or otherwise infringe upon the right of the people to keep and bear arms.

The Second Amendment confers no positive right. It recognizes a pre-existing right. People have a natural right to keep and bear arms for hunting, sport, recreation, self-defense, or any other reason. The Second Amendment doesn’t read, “The people shall have the right to keep and bear arms.” It is part of the Bill of Rights that protects the natural rights of the people from government overreach. The Second Amendment is merely an additional limitation on federal power to infringe upon gun rights aside from the fact that there is no authority granted to the federal government by the Constitution to infringe upon them in the first place. If the Second Amendment didn’t exist, Americans would still have the natural right to keep and bear arms.

The federal government has no authority whatsoever under the Constitution — with or without the Second Amendment — to ban or regulate handguns, shotguns, sawed-off shotguns, rifles, assault rifles, extended-capacity magazines, high-caliber guns and ammunition, automatic weapons, machine guns, grenades, or bazookas.

And neither does the federal government have the constitutional authority to establish or mandate gun bans, gun-free zones, background checks, waiting periods, trigger locks, limits on gun purchases, age restrictions on gun purchases, gun-barrel lengths, licensing of gun dealers, gun-owner databases, gun licensing, or gun registration.

Without amending the Constitution, there is nothing the federal government can constitutionally do about gun violence. There is no legislation it can pass. There are no mandates it can issue. Gun-control groups, Democrats, liberals, and Progressives — including also some conservatives and Republicans — can scream and shout all they want about the federal government’s doing something by enacting new and stricter gun-control laws, but, constitutionally, there is nothing the federal government can do. Uncle Sam’s hands are tied. As well they should be. If an exception can be made for guns, then an exception can be made for anything else.

The problem

There is just one problem: current federal gun-control laws. Even if the Orlando shooting never took place and not a single new federal gun-control law, rule, or regulation was ever instituted, there still exist a myriad of federal gun-control laws, rules, and regulations. The main ones are the following:

  • The National Firearms Act of 1934
  • The Gun Control Act of 1968
  • The Law Enforcement Officers Protection Act of 1986
  • The Armed Career Criminal Act of 1986
  • The Crime Control Act of 1990
  • The Gun-Free School Zones Act of 1990
  • The Brady Handgun Violence Prevention Act of 1993
  • The Violent Crime Control and Law Enforcement Act of 1994

The National Instant Criminal Background Check System (NICS) was instituted in 1998.

And then there is the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). According to the latest ATF Staffing and Budget “Fact Sheet,”

The ATF is a world-class law enforcement organization committed to safeguarding lives by protecting the public from violent crime. ATF protects the public from crimes involving firearms, explosives, arson, and the diversion of tobacco products; regulates lawful commerce in firearms and explosives; and provides worldwide support to law enforcement, public safety, and industry partners.

For fiscal year 2015, the ATF reports that it had “5,026 employees, including 2,618 special agents and 811 industry operations investigators” — all at a cost to taxpayers of $1.201 billion. The ATF says it is “committed to safeguarding lives by protecting the public from violent crime.” Well, according to the nonprofit Gun Violence Archive (GVA), there were “more than 50,000 incidents of gun violence in 2015” with “more than 12,000 people” being killed. And according to the Washington Post, “the number of homicides in the country’s 50 largest cities rose nearly 17 percent last year, the greatest increase in lethal violence in a quarter century.” Sounds like the ATF has failed to do anything but enforce federal gun laws that take away American’s gun rights. The main point, however, is that the ATF has no constitutional authority to regulate, restrict, or ban alcohol, tobacco, or firearms.

The Second Amendment has, unfortunately, not prevented the myriad of federal gun-control laws, rules, and regulations that have been put in place during the 20th century. Not because there is anything wrong with it, but because the federal government refuses to follow its own Constitution.

Yes, we need gun control. But it is the guns owned by the federal government that need to be controlled. There are now fewer U.S. Marines than there are officers working at federal agencies with the authority to carry weapons and make arrests. According to a report issued in June by American Transparency, a nonpartisan watchdog group that compiles data on public expenditures, there is a growing trend of the militarization of federal agencies, most of which have no military responsibilities. As reported by the Boston Globe, “Between 2006 and 2014, the report shows, 67 federal bureaus, departments, offices, and services spent at least $1.48 billion on ammunition and materiel one might expect to find in the hands of SWAT teams, Special Forces soldiers — or terrorists.” That includes $11 million by the IRS for its 2,300+ special agents, $3.1 million by the EPA, and $4.8 million by the Animal and Plant Health Inspection Service, an agency of the U.S. Department of Agriculture. Advocates of gun control are focused on the wrong people.

The Heller and McDonald cases

But what about the Heller and McDonald Supreme Court cases? Did not the Court rule in District of Columbia v. Heller, 554 U.S. 570 (2008), that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” and then reaffirm this opinion in McDonald v. City of Chicago 561 U.S. 3025 (2010), and further rule that the Second Amendment applies also to the states?

Yes, but there are two problems. One, as I have pointed out above, the government follows neither the Second Amendment nor the Constitution. And two, although the Heller and McDonald cases clearly affirmed that the Second Amendment protects an individual right, they also made it perfectly clear that the federal government can still infringe upon that right. In the majority opinion in the Heller case, the late Justice Antonin Scalia wrote that there are “undoubtedly” limits to the right to bear arms under the Second Amendment. The Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” And in the majority opinion in the McDonald case, Justice Samuel Alito wrote,

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.

Neither the Heller nor the McDonald case invalidated a single federal gun-control law or regulation. No wonder some advocates of gun control expressed support for the outcome of these cases. The decisions in the Heller and McDonald cases don’t change our need for vigilance when it comes to gun liberty.

The solution

The solution is a simple one. On the federal level, all laws of any kind concerning guns, ammunition, magazines, background checks, gun shows, gun manufacturing, gun sales, and licensing of gun dealers should be repealed.

It doesn’t matter how many shootings there are at schools, movie theaters, and nightclubs; it doesn’t matter how many murders occur every week, month, year; it doesn’t matter how many armed robberies take place; it doesn’t matter how many drive-by shootings occur; it doesn’t matter how many people commit suicide using a gun; it doesn’t matter how many children are caught bringing guns to school; it doesn’t matter how many people are killed or wounded while cleaning a gun; it doesn’t matter how many hunting accidents there are; it doesn’t matter what the murder rate is.

Although those are all terrible things, even if federal gun-control measures actually worked (a very dubious proposition), it is still not the job of the federal government to do anything about gun violence. And the federal government has no authority under the Constitution to do anything about it. This is why all unconstitutional federal gun laws (which means all federal gun laws) should be repealed, the ATF should be eliminated, and the National Instant Criminal Background Check System (NICS) should be abolished. Every congressman who introduces a gun-control bill should be laughed at, ruled out of order for blatantly seeking to violate the Constitution, and sent to his office to read the Constitution until he can come up with some constitutional authority for the federal government to have any laws that concern guns.

If we are to have gun-control laws, it is on the state level that any gun-control legislation should be enacted. It is on the state level where the whole issue must be debated and decided. Now, that doesn’t mean that the states should enact gun-control measures. Libertarians would make the same arguments against state gun-control laws that they make against federal gun-control laws (Every argument except the constitutional one. That would depend on what the state constitutions said about guns and gun control.) On the state level, libertarians would argue for the protection of individual liberty and property rights. They would point out that since every crime needs a victim, just buying a gun or ammunition should never be a crime. They would point out that murder can be committed with a knife, a hammer, poison, almost any blunt object, one’s bare hands, or even a well-placed pillow. They would point out that people intent on committing murder and facing life imprisonment, the death penalty, or getting killed during or after their shooting spree don’t care a whit about violating any laws concerning gun-free zones, gun-show regulations, bans on certain types of guns and ammunition, concealed weapons, waiting periods, or background checks. They would point out that it is those who use guns responsibly — for recreation or self-defense — who overwhelmingly bear the brunt of the inconvenience, expense, and loss of liberty that results from the myriad of federal gun rules and regulations.

Anyone who supports any gun-control measure on the federal level is not only acting as though the Second Amendment doesn’t exist, he is also mocking the Constitution and America’s federal system of government. The real issue here — as are so many of the issues debated in America — is about the limited powers of the federal government under the Constitution.

This article was originally published in the October 2016 edition of Future of Freedom.

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