Consistent usage throughout the Bill of Rights

?The People? Protected By The Second Amendment Are The Same People Protected Throughout The Bill Of Rights.

This point was clearly settled by the Supreme Court in United States v. Verdugo-Urquidez, supra, 494 U.S. 259. The Framers knew how to distinguish between the concepts of ?people? and ?states,? doing so explicitly throughout the original Constitution and Bill of Rights. See, e.g. U.S. Const. amend. 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.?) (emphasis added). Indeed, the very phrase used to describe the Second Amendment?s subject ? ?the right of the people? ? also provides the subject of the First and Fourth Amendments. See also U.S. Const. amend IX (?rights . . . retained by the people.?)

Moreover, as the Fifth Circuit noted, construing the Second Amendment as a right of the states to arm a militia ?would be in substantial tension with Art. I, sec. 8, cl. 16 (Congress has the power ?To provide for ... arming ... the militia. . .?).? Emerson, 270 F.3d at 227. And interpreting the Second Amendment as if it secured an individual right to keep and bear arms, but only while serving in the military, would be equally unpersuasive. Presumably if the states would conscript people into military units, members of such units would be armed. After all, ?No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.? U.S. Const. art. I, sec. 10, cl. 3. If congressional consent or emergency conditions allowed a state to raise an army or navy, there would be no need to guarantee the rights of soldiers and sailors to keep weapons.
There's not much to comment on here.  The people are the people.  The usage is consistent. 

The usual argument from collectivists is that the States were prohibited from maintaining a standing army without consent of Congress, and yet permitted to form one in emergencies, but without a right to keep and bear arms, where would they get the arms on short notice to arm their army?  Under this theory the 2nd Amendment would protect the right of the states to maintain an armory.

That theory is lacking, however, in several areas.  It does not account for the right to bear arms; such a phrasing implies individuality.  States are not said to bear arms; they would field an army.  Bearing arms is an activity performed by a person, not a state.  And, of course, if the Framers had meant to say state they would have said state. 

If the people's right to arms is healthy and respected, there is no need for the State to maintain its' own armory; for the people will come when called to service with their own arms.  An armory would be necessary for a State seeking to maintain a standing army, of course, but the Constitution is strongly prejudiced against such a creature.  We maintain one today only after bitter lessons learned from two World Wars.

And if the 2nd Amendment is to be read to protect a right of the States to maintain armies, it would be in direct conflict with the sections of the Constitution that requires the States to have the permission of Congress (or an emergency, such as an invasion) to do so.  Several of the Founders are on record as stating that the Bill of Rights does not conflict with any of the powers stated earlier in the document; that is, the federal government was not granted any power to regulate speech, or the press, or to institute a state religion, or to restrict the arms available to the people.  But if the 2nd protects a State's right to form an army, it would be in conflict with the powers already granted to the federal government.  Since the Framers don't think it was, it must mean something else.

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This entry was published Sun Aug 13 14:28:50 CDT 2006 by TriggerFinger and last updated 2006-08-13 14:28:50.0. [Tweet]

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