There Is No Rambo Clause In The Constitution

DelmarSecondAmendment2

The Constitution of the United States of America does not give you the right to grab an automatic or semi-automatic assault weapon and wreak havoc on your fellow citizens.

In fact, until the Supreme Court of the United States was packed with conservative justices by George H.W. Bush and his son, the Court had long held that an individual citizen’s right to possess firearms was not a Constitutional right, unless that individual was part of a state militia.

The Second Amendment to the Constitution of the United States of America clearly 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.

If you take out both modifying clauses and reduce the Second Amendment to its essence, it reads: “A well regulated Militia, …, shall not be infringed.

Both phrases: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms“, are modifiers of the term Militia and are not the primary intent of the Second Amendment.  Any grammarian can see that, you don’t have to be a Constitutional Scholar.

If one reads the legislative history of the Second Amendment (to non-lawyers, “legislative history” is the collection of all drafts, written statements, debates, etc., of a piece of legislation taken as a whole) it becomes abundantly clear that the intent of the framers of our Constitution was that the Second Amendment was meant to facilitate the maintenance of “a well regulated Militia.”

If I may paraphrase the Second Amendment, it says that your right to bear arms is sacrosanct as long as you are part of a “well regulated Militia.” So if you want to bear arms freely, I believe (with some knowledge of Constitutional law) that you should join a well “regulated” Militia or the National Guard.

While I agree that there are many who would disagree with my view, I firmly believe that just as many if not more of my fellow attorneys would agree with this reading of the Constitution’s Second Amendment.

Why did I mention the last two Republican presidents?

You see, it was not until 2008 after the last conservative justices joined the Supreme Court thus giving conservative justices a five to four majority on the bench that the view discussed above changed – A mere four years ago.

When the first opportunity arrived, the newly conservative court held in a narrow 5-4 decision that the District of Columbia’s gun control law was unconstitutional.  Four justices dissented (District of Columbia v. Heller, 554 U.S. 570 (2008)) and agreed with Justice John Paul Breyer’s dissent which reiterated what had been the law of the land for years relating to the fact that the right to bear arms was pursuant to the maintaining of a well-regulated militia. A good article on the history of this topic can be found in http://www.loc.gov/law/help/second-amendment.php

On an ancillary, but connected point, conservative justices brought forward the concept of “Originalism.”  Simply put, Originalism is the opinion that all Supreme Court cases must be decided in accordance with what the framers of the Constitution wanted as evidenced by their own thoughts and writings – even though the matter might not have existed or was even conceived in all of humanity during the framers’ lifetimes.  But even with this specious “theory,” one would have to read legislative history to glean what you can from the Framers’ writings on their intent for the Second Amendment.  As I stated above, the Second Amendment is clear.  You need to be part of a State Militia to possess weapons.

I fail to understand why noted legal scholars of Originalism, such as Antonin Scalia, cannot see this.

It is time to correct this anomaly and put clear thinking justices on to the Supreme Court.

Note: This article was previously published on this site.  This is an updated version.  The writer is an attorney who did pretty well in his Constitutional Law class.

Advertisements

2 comments on “There Is No Rambo Clause In The Constitution

  1. Note: I encourage differing views, but reserve the right to reply.

    Rather than disparage my bodily content, I encourage you to read the attached article which I and other attorneys believe is a factual history of the Second Amendment’s various interpretations by the Supreme Court of the United States throughout time. If you read it dispassionately, you will see that the current opinion held by gun enthusiasts is a relatively new one having been decided in a narrow 5-4 decision in 2008. http://www.loc.gov/law/help/second-amendment.php

    Many legal scholars believe, as I do, that the right to own firearms is limited by the Militia clause, which gives the government a right to regulate control. That said, I do not believe that anyone is thinking about taking away personal firearms such as revolvers, ordinary sport rifles, or shotguns.

    Weapons capable of firing multiple bullets within a short period of time is another matter however. There is no logical reason to own a semi-automatic assault rifle. In fact the bullets used in such weapons aren’t even approved for sport use in many states, because they are designed to expend their energy within the target’s body, usually by fragmenting into many pieces. They are meant to kill people not game.

    Unless you are really into Venison Tartare, there is no useful purpose for such weapons. Incidentally, Venison Tartare is probably not a very healthy thing to eat.

  2. You are so full of shit, it isn’t funny. Never has their been a consensus that owning firearms was not a constitutional right. Your first paragraph is a lie.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s