Sunday, May 2, 2021

Answering QUORA Questions About the Second Amendment

QUORA: ‘What would happen if SCOTUS were to rule that the right to keep and bear arms is to be limited only to those people who are members of the well-regulated militia?’ 

I posted this answer:

Nothing. The Ninth Amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The right of a group of citizens to keep and bear arms as an association is an extension of the individual’s right to keep and bear arms. Rights belong to individuals. An individual does not need to join a group like a well-regulated militia to acquire that right. So even in the event that the Supreme Court ruled that the Second Amendment only enumerates the private right of a militia, the individual right to keep and bear arms is not infringed.

QUORA: Where does the Second Amendment say that individual citizens have the right to have guns? 

I posted this answer:

Wrong question. The U.S. Constitution is a document that enumerates the powers of the government, thus limiting the government’s powers. The proper framing of the issue is, “Where does the Constitution empower the government to prohibit individual citizens from owning guns?” Answer: It doesn’t. Hence, however the Second Amendment is interpreted, the right to own guns is not affected. The Ninth Amendment, which reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” assures that right. 

QUORA: ‘Do you believe the 2nd Amendment gives US citizens the right to carry a gun?’ 

I posted this answer:

Rights are not “given” by the Constitution. Rights precede government. As the Declaration of Independence clearly states, “to secure these rights, Governments are instituted among Men.” The proper purpose of a government is to recognize and protect individual rights, not grant them. The fact that the Constitution enumerates some rights, like the rights to free speech or public trial by jury, does not mean only those rights. As the Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So however the “right of the people to keep and bear arms” is interpreted, and given the fact that the Constitution does not grant the government the power to forbid private ownership of arms, the right of an individual to carry a gun is absolute so long as the individual does not use it in a way that threatens or violates the rights of others.

QUORA: ‘How would you amend the 2nd Amendment?

I posted this answer:

I wouldn’t bother to amend the Second Amendment. Granted, the wording leaves open the question of whether the Second Amendment covers individual or collective rights. But we need not agonize over the wording of the Second Amendment. America’s concept of governance is based on constitutionally enumerated governmental powers. To my knowledge, the U.S. Constitution does not grant the government the power to forbid the private individual right to possess arms. 

The Constitution does make clear that the individual rights explicitly covered in the Bill of Rights, including the 2nd Amendment, are far from the only rights held by the people as individuals. While the Second Amendment wording may be ambiguous and open to debate, the right to “bear arms” is most clearly protected by the Ninth Amendment.  That Amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It follows that the individual right to bear arms, including guns, is unquestionable. 

The right to bear arms, including a gun, is an inalienable individual right protected, if not by the Second Amendment, then by the Ninth Amendment. There is no need to amend the Second Amendment.

In regards to a clear understanding of individual rights, I recommend Moral Rights and Political Freedom by Professor Tara Smith 

Related Reading:

Burden of Proof is On Government in Concealed Carry Case

Gun Control Should focus On Principles, Not Guns

Former Supreme Court Justice John Paul Stevens’ Scary Attack on the Right of ‘Personal Self-Defense'

Collectivized Rights by Ayn Rand

The Second Amendment Is About an Individual Right, Not a Collective One by Michael Marshall for The University of Virginia School of Law 

Putting the Second Amendment Second: Reframing the constitutional debate over gun control, by AKHIL REED AMAR for Slate

My comment on David Johnson’s answer to QUORA: ‘Which amendment gives U.S. citizens the right to bear arms?

1 comment:

Mike Kevitt said...

The principle of unalienable individual rights is the basis, the origin, of all rules which warrant being called laws, starting with founding documents, then all subsequent laws. These rights originate in our nature as Homo-sapiens, our volitional consciousnesses. From that, it takes only our knowledge of rights to justify recognizing and physically protecting them in human relations by formally encoding them in writing as laws, from founding documents on up.

Laws encode rights not enumerated in the Constitution, and their application, from our knowledge about our nature in human relations, as needed. The 'as needed' comes from changing times, day by day, year by year, decades, etc. This usually necessitates enumerating unenumerated rights, as needed, but all remaining unenumerated rights are still retained by the individual.

This 'as needed' is the sole focus of encoding, or legislating and executive orders thus entailed, and, therefore, of politics, meaning, deciding the best way to encode rights which includes deciding who ultimately gets to do it. It works as long as the focus is solely on individual rights. The judiciary is to be the gatekeeper for this focus.

Our rights, whether or not enumerated, are the sole determinant of the power of government, such power being enumerated in the Constitution. Anything not enumerated in the Constitution as a power of government is not a power of government.

Any legislation or executive orders not in conformance with individual rights are violations of them and, as such, are not laws and they confer unwarranted power upon government, beyond its authority. This is afield of the 'as needed' and is not a product of politics or of politicians. The judiciary is the gatekeeper against this non-conformance.

As everything written here applies in favor of the 2nd. Amendment, it applies in favor of all individual rights, enumerated and unenumerated, and in favor of the very principle of unalienable individual rights at the basis of all rights. The principle and all rights stand by themselves anyway, from our knowledge of our volitional nature as Homo-sapiens.