Monday, March 10, 2014

1st Amendment and 2nd Amendment are Just DIFFERENT

Reminded by this story, following up this story, of the difference between 1st Amendment and 2nd Amendment.  Here they are, for your reference:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

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.

So....the 1st Amendment is much more extensive and unlimited.  "No law," which doesn't quite mean no law, but no law is what we are going for.  The 2nd Amendment does also create an individual right, a right that cannot be taken away without due process and good cause.  But the process and the cause for restricting 2nd Amendment rights is much more open to state action.

As I have argued before in this space, the 2nd Amendment creates a right much more like the right to drive.  No law-abiding, responsible citizen can be arbitrarily denied a driver's license.  It's an entitlement:  satisfy these (reasonable) requirements, and you get to drive.  But the state gets to choose the laws, and define responsibility.  Sure, that means that there is the possibility of abuse of gun rights.  But that's because there is the possibility of abuse of guns!  You drive drunk, or recklessly, and you lose your license.  You use your gun irresponsibly, or store it in a way that allows it to be stolen or misused easily, you lose your status as a legal gun keeper and bearer. No outright bans, and no outright bans on regulations, either.  It's in between. 

So, background checks, required training, required registration...those are all things that are well within what is allowed by the 2nd Amendment, while also protecting the right responsibly, law-abiding citizens to own (and bear) arms. 

To drive, you have to take classes, demonstrate proficiency, have insurance, and behave responsibility.  Failure to do these things mean that the right to drive is not granted, or temporarily suspended, or permanently revoked.  There is no other way of interpreting "well-regulated," unless you go all the way to "they were talking about militias, and there is no individual right at all."  I think there is an individual right, and that right of the people to keep and bear arms shall not be infringed.  As long those people obey the laws, behave responsibly, and (for example) don't fire actual rounds into the air in "celebration."


Anonymous said...

"There is no other way of interpreting "well-regulated,"

For this to be true, you'd have to be able to point to an extensive book of laws and ordinances requiring (British Citizens before the Revolution | US Citizens after the Revolution) to submit to "background checks, required training, and required registration" from the period of the Revolution. Right?

If not, then there has to be another meaning to the term well-regulated, right?

PS - In most states, anyone can drive anything that moves on private property. This is a big deal for farmers

Kevin Erdmann said...

It seems to me that the most obvious reading of the second amendment is that, since the government has to have guns, then citizens will get to have guns, too. It's the government's guns that are referred to as "well regulated" and the citizens' gun access that "shall not be infringed".

Anonymous said...

Following your logic as it pertains to Amendment II couldn't a tyrannical government using your right to drive argument deprive citizens their Constitutional "right of the people to keep and bear arms, shall not be infringed." An infringement can be interrupted as restrictive gun law too. Also Amendment I uses the phrase "Right" for assembly and redress. Abridging mentioned in I and Infringement in II are interchangeable in definition.

bd said...

Following up on the previous comment...

Since "infringing" includes a lot more degrees of regulatory activity than "prohibiting" does, it seems to me that "shall not infringe" restricts the scope of government action significantly more than "shall not prohibit."

That doesn't eliminate a need to parse the "militia" clause, but it does seem relevant.

Tom said...

Parsing the Constitution can be fun. Some rules of grammar were different in the 18th century. However the parsing turns out, it's clear that the framers meant to recognize and affirm people's rights; they were not writing to define those rights.

The right of self defense is fundamental, as is the right to the means of self defense. If you have no means of self defense, what are you going to do when they come for your other rights?

Anonymous said...

"the 2nd Amendment creates a right much more like the right to drive"

Really? I've always been told that driving is a privilege, not a right. So your argument is that the Founders put a privilege in the Bill of Rights. I'm not buying it.

I find your interpretation of "shall not be infringed" to be amusing. Personally, I generally follow the plain meaning of the words when I interpret something.

If I was a loony-toons lawyer I'd argue that the 2nd amendment is much more specific than the 1st. For instance, the 2nd amendment specifically details to whom it applies, "the people." The first amendment does not specify to whom it applies, therefore it only applies to the government and "the people" do not have the protections listed.

But I'm not a loony-toons lawyer, so I know what the first and second amendments mean. I'm sure you do too, but since the plain meaning does not conform to what you want it to mean you use convoluted logic to try and justify your position.

OregonGuy said...

Oregon has a law that restricts the number of rounds a magazine can hold, when hunting. (Except for Western Gray Squirrel.)

I don't have any problem with this regulation.

Is this an example of a well regulated militia? No. But hunting is a licensed activity. Self-defense, target shooting, aren't licensed activities. Recent decisions of the Supreme Court seem to indicate that the Court views attempts to impose restriction, through licensing, as infringements. And the right of the people to keep and bear arms, shall not be infringed.

If you choose to infringe upon this right, what method, what vehicle of infringement would you rely upon to impose infringement?

John henry said...

Not the first time I've heard this, usually as a defense of gun control.

The analogy with driving does not work if one spends about 30 seconds thinking about it.

I only need a license if I am driving on government property. There is no requirement for a license if driving on private property. A 10 year old can drive a car all day long on a race track and they do (or used to) in midget racers.

Nor does a car need to be registered with the government unless it is used on govt roads.

I do not even need a license or registration to transport a car on govt roads (Assuming that someone else is driving the transporter)

The only way this analogy works is if the law requires gun licenses and registration when used on govt property. There would be no regulation of gun usage on private property, other than by the property owner.

John Henry

russell said...

Driving a car is not mentioned in the Constitution and thus is not a Constitutional right. And because it is not a power that is delegated to the federal government (by the Constitution), the 10th amendment tells us that the regulation of driving will be done by the states.