Saturday, December 22, 2012

You can’t break the law to change the law

The call for gun control in the United States seems to pit those who believe that each citizen has the unfettered right to own and carry firearms against those who fear that unregulated firearms inevitably lead to murder and mayhem.

The real augment for or against gun control by the federal government centers on the 2nd amendment to the United States Constitution which states “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.

Reasonable people differ about exactly what the writers meant by this unclear passage. Did they mean that only the members of the militia should have the right to “keep and bear arms” or did they mean that each citizen has the unregulated right to keep and carry firearms?

If we were to accept the more limited view that the right to keep and bear arms is limited to the militia, then we must ask who is a member of the militia? The following quote from the debate at the time the original 10 amendments were being considered might add some clarity: "I ask, sir, what is the militia? It is the whole people, except for few public officials." Stated George Mason, of the Virginia delegation.

If we accept the view that the 2nd amendment limits the right to keep and bear arms to that militia then George Mason’s statement still forces us to accept that the right belongs to each person individually.

We do hear arguments that we cannot know at this late date what the founders intended by this amendment. Only the intellectually lazy advance this argument since there is a huge body of writing available from the framers recommending the ratification of the original 10 amendments.

"If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens."  Alexander Hamilton

"The Constitution preserves the advantage of being armed, which the Americans possess over the people of almost every other nation." James Madison

“No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect them selves against tyranny in government.” Thomas Jefferson

These quotes from the founders clearly state that their intent was to ensure that the people always have the ability to say “NO” to their government if it oversteps it’s bounds.

For those who say that this is paranoid thinking since we have a 200-year history of the government not exceeding it’s constitutional authority, think on how former President Richard Nixon might have misused his power had he not been raised to believe that the citizens have not only the right to say no to the government but the means enforce their decision.

While the constitution, in my opinion, clearly bars the government from interfering with any citizen’s right to own or carry a weapon I also believe that we do have the right to amend the language of the constitution.

Most often attributed to Abraham Lincoln, the quote that "The Constitution is not a suicide pact" is a phrase in American political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the nation and its people.

No less than Thomas Jefferson wrote:
“I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

These writings by one of the founders who was later the 3rd president and Lincoln, the 16th president, who lead the fight to preserve the union are often cited to support the view that the constitution is a living document. It is indeed a living document but the method of change is limited and clear.

Article V of the constitution clearly states the method of breathing life into the document.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The real argument is not over any limitations on gun ownership, it is rather over congress’ authority to enact those limits through legislation.

Congress has no authority to pass any laws that violate the constitution. Any constitutional scholar will agree that the prime purpose of the constitution is to limit the powers of the government. In fact the founders were so concerned about this point that the tenth amendment addresses this point directly.

Amendment [X.]

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.

As I said at the beginning of this opinion piece, reasonable people may differ about if we should change or limit the current constitutional unfettered access to guns. That is a different discussion than the one in this article.

For me the key point is the method used to enact those changes. Since reasonable people may differ on the meaning of the 2nd amendment then a constitutional amendment is necessary to clarify it’s meaning in todays vastly different world from that of the founders.

I would like to see a real and open debate on the subject with the clear understanding and acceptance by all the people engaging in the discussion: the only way to change the current state of free access to guns by American citizens is through a constitutional amendment.

I have not stated my opinion on gun ownership since my purpose is not to sway anyone to my point of view. My hope is to convince my readers that the constitution cannot be changed or limited by legislation, only by amendment. The more ambiguous the original language the more necessary is open debate on the topic and the more necessary a constitutional amendment to clarify that language.

If we allow the government itself to abridge the constitution by illegal legislation because we are afraid, then we give tacit approval to the abridgment of any of the other rights enumerated in the bill of rights and those limits on the government are our single best protection from a government that thinks it controls the people rather than the people controlling it!


Bryan Neva said...

Very well researched and written opinion piece. I was ignorant of the reasons behind the 2nd Amendment: to limit the tyanny of government. I would add one thing is that in a recent SCOUS decison they verified that the 2nd Amendment means exactly what you said: we all have the right to own guns.

eclecticdog said...

Nice post!