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Why the D.C. Ban was, in fact, Unconstitutional.

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I know there's been a lot of uproar about the SC's recent ruling in the past few days and because this is an issue which I spent about 3 months researching, I thought that I would share the legal precedents which determined their ruling.

In my mind, the Court actually did a good job of upholding the unambiguous intentions of the Constitution, and not advancing any other agenda, which is their job, first and foremost.

Although, of course, the Court, like the current Presidential administration, did not focus on the most obvious interpretations of the 2nd Amendment to justify their ruling, which I think might have better explained the scope of the ruling.

The issue that I found when researching the Amendment and it's purpose, is actually quite simple.

While the Constitution and the Bill of Rights established many civil liberties that were to be unique to American citizens, it also restated rights enjoyed by British subjects under common law.

So, the primary question is, were the founders inventing a new right, or referring to an old one, which they would have enjoyed as British subjects?

Let's look at the language:

The Second Amendment, as passed by the House and Senate, reads:
"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 original and copies distributed to the states, and then ratified by them, had different capitalization and punctuation:
"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." (1)


Notice the language here. If the founders were creating a new right, wouldn't they have said "a right of the People" here? By using "the right of the People," and this is the strongest argument which the petitioner's used in Court, aren't the founders, who were mostly lawyers and familiar with Common Law, actually referring to an already established right?

It's the difference between saying:

Q: What is that?

A: It's a dog.

But if one assumes that the questioner should know the dog, wouldn't it make more sense to say:

Q: What is that?

A: It's the dog.

As in, it's "the dog." It's our dog and you should know that.

Welcome to the world of legalese.

So, while the militia clause enhances the original right, the original right referred to which was enjoyed under Common Law, is not entirely dependent on the militia clause in order to exist.

The Congress can limit usage, appropriate possession, and so on...But an absolute ban is clearly Unconstitutional. If anything, the Second Amendment is a radical improvement on the right enjoyed under English Common Law, because under Common Law, the right was reserved exclusively to Protestants. Under the American Bill of Rights, this is extended to all citizens of every state, regardless of religion.

The ruling is not saying that citizens' have an absolute right to use weapons however they wish, contrary to public safety issues.

And the key to gun safety "lies not in our stars" dear readers, but with our military.

The militia clause and the right enjoyed under Common Law, and every ruling by the American courts since the 1600's, entitles citizens to possession of weapons which are similar to those used by regular infantry units in the national armed forces.

If we want to decrease violence in communities, we should start by dismantling our military Empire overseas, decrease our total reliance on the military/industrial/entertainment complex, and choose against the belligerent, Imperial, militarism we have practiced around the globe for 100 years.

People using weapons are dangerous, and are even more dangerous when they are desperate.

Surely, the continued prospect of nuclear attack, whether a dirty bomb at home or "tactical" uranium bombs against Iraqis, as well as our many failed social institutions (from schools, to hospitals, to consciously directed sustainable industry) makes people feel desperation each day, and is a larger problem than allowing someone to keep a pistol in their dresser.
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It doesn't always take an unenforceable law to... by John Hanks on Wednesday, Jul 2, 2008 at 6:41:21 PM