Outline
The second amendment in the constitution of the United States gives a provision to the citizen of the Free State to keep and bear arms. The basis of the second amendment is on article VI of the articles of confederation that were drafted in the year 1777 and the year 1789. According to the amendment, an individual below the age of eighteen as well as any individual who may have been convicted of a felony is not allowed to enjoy the right of keeping and bearing arms. The research objective of the paper is to answer the question of what rights are protected by the second amendment.
Introduction
In the second amendment, there is a provision for people to carry and bear firearms according to the constitution of the United States. This is allowed on the condition that citizens do not misinterpret this and consequently lead to infringement of the right where people may interfere with other people’s security. It is meant for individuals’ security and for the security of the state. This second amendment is based on article VI of the articles of confederation that were written in 1777- 1789.
According to the amendment, any individual under the age of 18 years, however, does not have the right to keep or bear arms and this also applies to all those who are convicted of a felony. The research will focus on the rights that are protected by the second amendment. This part is a section in the United States 10 bills of rights. It is argued that, if there is a regulated militia, it would help in promoting more security in the Free states as long as it is ensured that, the right is not infringed.
The rights protected by this section encompass meaning as well as scope that has been largely contested among the other rights. Studies have shown that the text regarding the second amendment appears in two versions although the two have only a slight difference; just on the punctuations. (United States Constitution Amendment XIV, § 2)
Rights Protected by the Second Amendment
Although the second amendment regarding the right to keep and bear arms appears in two different sections, the two versions are prominent in all official uses regarding publications of the government. The original copy which was handwritten is kept at national archives and was written by William and had approval by the senate as well as the house.
The right in this second amendment originated from a republican ideology that emerged with the issue of the argument that it would be unfair to prohibit some men from possessing arms while the same type of arms was being possessed by other men which were regarded as denying them freedom. This idea was original and had support from many other suggestions collected from various sources which had similarities in that, they had support from almost every section of the bill of rights in the states. (Halbrook, 1989)
Prior amendments had also proposed the passing of the second amendment before the constitution was ratified. Both English and American writers of politics who took the lead in the ratification expressed their support on the argument that, the well-being of the society, as well as the government, would be significantly influenced by the popular keeping and bearing of arms. They argued that people and the society at large would not affirm their power both socially and politically in terms of their participation if they did not possess arms.
That it was important for a person to protect him/herself from other citizens who would be vicious as well as from corrupt authorities. It was also found necessary for the citizens to safeguard their security from rulers and this would be the only way to distinguish a free man and a slave. During the structuring of the second amendment, the two rights were distinguished regarding this issue. One of the rights advocated for an individual to keep and bear arms while the other one advocated for a composition of a militia comprising of ordinary citizens. (Mark, 2007)
The concept of regulated militia was proposed in England where each subject was obliged to participate in the protection of the king and suppress any occurrence of riots; a concept that persisted till 1671 when a statue was created by the parliament regarding qualification based on property owned before he/she could be given the right to possess firearms. The issue of possessing firearms was endorsed by King James with no exception when he said that, protestants did not have the right to possess arms even though, they comprised 95% of all the subjects. When William of orange rose into power, he reversed the ban and declared that protestant; who comprised of the higher percentage of the subjects could possess firearms to defend themselves depending on the prevailing conditions as long as they followed the regulations of the law. (Sugarmann, 2001)
Right to keep and bear arms
According to the second amendment, that, every citizen possesses arms and receives the right teachings regarding the use of firearms especially when young so as to ensure liberty is preserved. There was a general perception that, all persons who were able to handle and make use of firearms were supposed to have them for security purposes and for the security of the states. This right to keep and bear arms and which was partly English and partly American antedated the constitution as well as the discovery of firearms. Research has shown that, the concept dates back to the days of Alfred the great in 872 A.D who allowed all the citizen of English including the peasants to purchase private weapons and prepare themselves so that they could be available for military duties whenever the state needed them. (Wilcox, 1991)
Studies have shown that, this contrasted sharply with what was happening in Europe’s where the arms could only be possessed by the noble class of citizens and those who were assigned with the military duties. Even when several Saxon rights were abridged, the right to keep and bear arms was retained and every free man aged from 15 to 40 years was required to acquire certain arms with a good arrangement to the prevailing possessions. Every year, such citizens in the age bracket had to demonstrate to the officials in the royal family to prove that they were armed appropriately. (LaPierre, 2003)
According to the report provided by subcommittee regarding the right to keep and bear arms, “the right of people” as a phrase carries the same meaning as in the second amendment. The U.S constitution has the capacity to recognize as well as protect but no one has been granted the right to keep and bear arms according to the pre-existing right.
This interpretation is based on the fact that, the framers of this amendment made an assumption that, government’s power is based on the ability of the people whereby, their natural right is either preserved and retained by the citizens according to the report provided by the ninth amendment or ceded to the government through its powers and which are protected from abuse by the excessive powers of the government by including and listing them to be among the 10 American bills of right. The drafting of the second amendment and its origin helps the common citizen to understand what it means by the right of the citizen. (Kelly, 1964)
According to the amendment, the right of the people refers to the civil right that the individual citizens have. The first proposal of the right suggested that, keeping and bearing firearms by the citizens as their rights would not be infringed. It also suggested that, it was important for the security of the country to establish regulated militias which would be armed in a free country. However, no one religiously scrupulous of possessing firearms would be forced to give military service at a personal level. It is also important to clarify that, the second amendment did not intend to promote possession of firearms with an intention to engage in sporting activities such as hunting. (Alstyne, 1995)
The earlier draft clarified that, if a person by his/her religion did not wish to keep or bear arms, the law would not be in a capacity to compel such a person to have the firearms. The reference in the text was made for an individual and could not be taken to belong to a group. The version of the concept of the second amendment was found to be very similar to that of the first amendment which stated that, in line with religious freedom, the congress would not be in a capacity to prevent the keeping and bearing of arms by an individual on one hand but in the same capacity, the congress did not have the authority to compel those individuals who wished to object keeping and bearing of firearms to do so. (Cornell, 2000)
Research has shown that, it was unlikely that, the intention of Madison who was entrusted with the drafting of the second amendment was to have the congress prohibited only from requesting pacifists and Quakers as a group to act as militia at any time. His intention was to have every person develop a will to join effort with the government when the government requested them the give assistance and their weapons would not be meant for any other purpose far beyond from that end.
Research has found that, in 1972, the congress had passed a militia act that was in operation for more that 100 years that advocated for the same right to keep and bear firearms. It was argued that, people should enjoy the right to keep as bear arms in manner that did not depend on whether there was an organized militia or not among the states. The clause also did not mean that, constitutional protection was only meant for military weapons because similar to the already existing rights in the constitution, the framers only assumed the rights to be pre-existing.
The Madison proposal was revised by the senate which rejected it and added some words “for the common defense” which by implication meant that, the second amendment focused on protecting the right to keep and bear arms on a broader aspect as opposed to the earlier interpretation which just focused on the militia service. (Reynolds, 1995)
The focus on the bill of right through the second amendment was important in limiting the power of the government without interfering with the freedoms of the citizens. It was important for citizen to understand this because lack of understanding would have meant wrong interpretation of the second amendment. In the same bill of right, minimum standards have been set by the authors of the bill In order to define a free state. Studies have shown that, there was irony in reconsideration of the Madison clause regarding religious scruples as it was deleted because there was a fear that, chances of the government in misusing the clause to confiscate firearms from anyone who it would define to be religious scrupulous were high. (Alderman, 1991)
The commonly used phrase “ state’s right” is in the same way the source of some confusion regarding argument about issues of constitution because according to the current constitution in US, the states has not been assigned rights but rather has delegated powers. The difference between powers and right is clearly illustrated in both 9th and 10th amendment. The law only grants the government limited powers which should not be interpreted as states rights.
Research has shown this to be a very important difference as far as the American law is concerned because it forms the foundation of every government that want to be just in its administration. If the government would claim to possess right in its administration referring to the same natural rights that an ordinary individual would have, it would make the situation similar to that during the era of kings when divine rights existed. Studies have showed that, in America, there is no place for a collective right that would be shared equally by every one without being recognized to a particular person. (Douglas, 1961)
All practical effects were removed of collective rights governing the states through the constitution of the Soviet Union. It was people who were considered as the owners of things such as printing press and anything that the people wanted could be published. However, if a person as an individual tried to exercise the same rights as a freedom of a free expression, it could have resulted to him/her being shot or considered for rehabilitation in a mental hospital. If people’s right was to be interpreted to mean collective rights as given by the second amendment, then this would have agreed with the same recommendation made in the fourth amendment and this would have only reinforced the second amendment’s proposal regarding keeping and bearing of arms. (Lund, 1999)
Police as well as military personnel according to the second amendment may exercise the same liberties that other people are not exercising such as possessing arms in order to defend themselves as well as other citizens. The assumption is that, the police would be receiving more trust in possessing arms to protect themselves and the general society more responsibly without power abuse and without being corrupted in a manner that an ordinary citizen may not be able to do. Defending censorship or defending the control of gun is in fact seen to mean that, some citizen are taken to be more free in comparison to others. (Cogan, 1997)
Proposal made in the second amendment were given recognition in the supreme courts at the time of United States vs. miller when prosecution on before the second amendment could be used as basis for any trial. Keeping and bearing sawed shotguns was dismissed. The court did not give any evidence that could be used on the nature of firearms that had been allowed according to the second amendment.
On procedural grounds, the Supreme Court stood firm on that, no judicial notice would be taken regarding the relationship between possessed firearms and the context of the second amendment. However, the court must receive some evidence. According to the second amendment, it is therefore taken as a right of an individual to keep and bear firearms as long as this does not interfere with the peace of other citizens and as long as they carried similar arms in nature. (Berns, 1984)
Research indicates that, this interpretation is in all aspects in agreement to the roots and history of the citizen’s rights to keep and carry firearms as the issue was previously discussed. It reflects accurately most of the proposals which initiated the bill of rights to keep and carry arms. Several states constitutions that had been adopted before the federal constitutions as well as the bill of rights also proposed the same right to the citizen to keeping and bearing firearms.
The language used in the second amendment formulates the right of individual citizens to keep and bear arms for the purpose of state’s protection. If the right to keep and bear arms is perceived as a component of the constitution in the federal government, it should also apply to the constitution of the states and this would a reasonable implementation of the right. It is therefore reasonable to have the right inserted as a component of the federal constitution and no reason for the same to be incorporated in the state’s constitution. Bills meant for the state are only meant to protect the state itself in accordance to definition where it is assumed that, a state cannot default its rights.
It would be absurd to have the state trying to protect its right through introducing a limitation of its own powers. The framers of the right to keep and bear firearms used several words similar to these into constitution belonging to several states. The right to keep and bear firearms deserves to be protected by both the state as well as the federal government so as to ensure the citizens have enjoyed the rights as their own without the right being infringed. (Wees, 1998)
Conclusion
Interpretation of the individual rights clarified the meaning of the several words used by the first congress as a reflection of the right in keeping and bearing of firearms. These words “right of the people” were consistently used by the framers as a reflection of individual right. The history and the concept as well as the wording used in the second amendment in the united state’s constitution is clear that, it is the individual right of a citizen to keep and bear firearms as long as this is done in a manner that is peaceful.
According to the second amendment, every citizen therefore is entitled to possess arms and receives the right teachings on the usage of firearms especially when young so as to ensure that, the right is not infringed. The general perception is that, all persons who are able to handle and make use of firearms are supposed to have them for security purposes and for the security of the states. (Gottlieb, 1981)
References
U.S. Const. amends. XIV, § 2.
Mark V. (2007): Out of Range: New York: Oxford University Press.
United States v. Miller, 307 U.S. 174 (1939).
Sugarmann J. (2001): Every Handgun Is Aimed At You: The Case for Banning Handguns. New York: The New Press.
LaPierre W. (2003): Guns, Freedom, and Terrorism. Tennessee: Inc.
Kelly F. (1964): Your Freedoms: The Bill of Rights: Putnam.
Cornell S. (2000): Who’s Right to Bear Arms Did the Second Amendment Protect: Bedford/stMartins.
Alderman E. (1991): In Our Defense: The Bill of Rights in Action: William Morrow & Co.
Douglas W. (1961): A Living Bill of Rights: Anti Defamation League of Bnai.
Cogan N. (1997): The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins: Oxford University Press, USA.
Berns W. (1984): In Defense of Liberal Democracy: Gateway Books.
Wees H. (1998): GREEKS BEARING ARMS: The state, the leisure class, and the display of weapons in archaic Greece: Classical Pr of Wales.
Gottlieb A. (1981): The Rights of Gun Owners: Caroline House Publishers.
Halbrook S. (1989): A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees: Greenwood Press.
Wilcox L. (1991): Guide to the American Right: Editorial Research Service.
Alstyne W. (1995): Second Amendment and the Personal Right to Arms: Journal on Firearms and Public Policy: HeinOnline.
Reynolds G. (1995): The Second Amendment and States’ Rights: A Thought Experiment: Wm. & Mary L. Rev.
Lund N. (1999): Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining: Tex. Rev. L. & Pol.