The Second Amendment
The right to bear arms
The Second Amendment is quite plain to most of us. “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.” No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps, one of the worst drafted of all its provisions. What is special about the Amendment is the inclusion of an opening clause -- a preamble, if you will -- that seems to set out its purpose.
It would be impossible to make sense of the Constitution if we did not engage in the ascription of purpose. Indeed, the major debates about The First Amendment arise precisely when one tries to discern a purpose, given that "literalism" is a hopelessly failing approach to interpreting it. We usually do not even recognize punishment of fraud -- a classic speech act -- as a free speech problem because we so sensibly assume that the purpose of the First Amendment could not have been, for example, to protect the circulation of patently deceptive information to potential investors in commercial enterprises.
87% of us, the common people understand that this Amendment refers to an individual right. The problem is, Congress, the U.S. Supreme Court and our federal judiciary have reduced the “right” almost to a nullity. Those individuals are almost all members of a class of people that at the time of the ratification of the Bill of Rights were considered only one step above the occupation of the common thief.
To put it mildly, the Second Amendment is not at the forefront of constitutional discussion, at least as registered in what the academy regards as the venues for such discussion --law reviews, casebooks, and other scholarly legal publications. Most scholars do not take the second amendment seriously.
One might ask why somebody does not simply say something like; "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact mean to do something else. Moreover, we might ask if ordinary readers of the late 18th Century legal prose would have interpreted it as meaning something else. The text at best provides only a starting point for a conversation. In this specific instance, it does not come close to resolving the questions posed by federal regulation of arms. Even if we accept the preamble as significant, we must still try to figure out what might be suggested by guaranteeing to "the people and the right to keep and bear arms;" moreover, as we shall see presently, even the preamble presents unexpected difficulties in interpretation.
For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other family members, and that will no longer do. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy.
Of course that some of the wrong people will get a hold of firearms. Take the recent shooting on 3500 south into consideration. This recent act of cold-hearted violence in a perfect reason why people should not have a right to carry fire arms. But, that was an illegal usage of the weapon, which is just sad. This is why I think that the only people worthy of bearing arms are those who just keep weapons around for protection and that is all. People who are as low as the person that killed Bethany Hyde for no reason, just need to die and long and painful death. The result of this paper is that we all agree that the 2nd amendment are in some ways a good, and other ways a bad amendment.