Interesting thoughts on the semantics of the 2nd Amendment

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133743Hokie
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Interesting thoughts on the semantics of the 2nd Amendment

Post by 133743Hokie »

The quotes below from the linked article discuss the semantics of the second amendment. It's parsing language, but it does show a different interpretation that has significant repercussions. Has any SCOTUS ruling ever ventured down this line of thinking? Just curious.

"In speaking with many fellow gun-owners, I have come to realize that most people don't know that the Second Amendment does not give us the right to bear arms. The Second Amendment states that the right to bear arms "shall not be infringed"; it does not confer that right. The Second Amendment is an admonition to government that it may not take away your right to bear arms, which is inherent.

The problem I see is that if the right to bear arms is considered given to you by the Second Amendment, then that right is a product of the Constitution. If it is a product of the Constitution, then it is subject to interpretation by the "ultimate authority" over the Constitution, the Supreme Court, through the concept of judicial supremacy established by McCullough v. Maryland. It does not help, in your author's view, if we continue to propagate the myth that the Constitution confers upon us the right to bear arms. It is our inherent, inborn right to protect ourselves and our families, bequeathed to us from our forefathers' blood and sacrifice in the many battles for liberty. It may not be legislated or interpreted away. It is not in the purview of the Supreme Court (or Congress, for that matter) to abolish the right to bear arms."

Read more: https://www.americanthinker.com/blog/20 ... z587qGtl95
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USN_Hokie
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Re: Interesting thoughts on the semantics of the 2nd Amendme

Post by USN_Hokie »

This is correct; it is a negative/natural right. That's why many argued that the BoR was superfluous, and it's also the reason for the 9th Amendment. Obviously, those arguing for the inclusion of the BoR made the right choice....

As you suggest, it's a mostly semantical argument. DC v. Heller makes it clear this is a natural, personal right to self defense which is protected/secured by the Second Amendment. It also addresses your last point:
The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would notapply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew.
IANAL, but I think the second-to-last paragraph goes off the rails for the author. I'm pretty sure Maybury v. Madison established judicial review/supremacy, not McCulloch v. Maryland - that pertains more to federal (vs. state) supremacy as it pertains to law-making.
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