Taking a big bite out of the Second Amendment

[FWiedner]

Taking a big bite out of the Second Amendment

By Saul Cornell
History News Service
 
The struggle over ownership of guns in the United States has taken a dramatic turn. In the midst of the winter holidays, when you could bet that everyone's mind was elsewhere, the Department of Justice decided to revise the Second Amendment.

This latest example of politically motivated historical revisionism completes the task begun by John Ashcroft in 2001 in his infamous letter to the National Rifle Association, which cast aside a hundred years of Justice Department policy on how to interpret the Second Amendment. Now the Department of Justice has produced a hundred-page memo designed to give activist judges a historical pretext for striking down existing gun laws.

Ironically, rewriting the Bill of Rights has been pawned off as nothing more than a return to the original understanding of the amendment. Yet this revisionist interpretation has nothing to do with the original understanding of the Second Amendment. The Second Amendment adopted more than 200 years ago 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 department's newly revised Second Amendment reads, in effect: The right of individuals to keep and carry guns shall not be infringed.

The Department of Justice has thus erased the preamble, which states the purpose of the amendment, to create a ''well regulated   Militia.'' The new version of the amendment goes well beyond the idea of interpreting the Constitution as a living document that must respond to changing times. In effect, Justice believes that it can simply expunge language that it finds inconvenient and substitute language more ideologically suitable in its place.

The department's novel idea that the preamble of the Second Amendment has no binding force would have certainly shocked the Founders. The most popular legal dictionary used by the Framers of the Second Amendment describes the purpose of ''The Preamble of a Statute'' as providing the ''Key to the Knowledge of it'' since it establishes ''the Intent of the Makers of the Act.''

Another bizarre claim made by Second Amendment revisionists is that the Framers of the amendment thought that bearing a gun and bearing arms were legally synonymous: hunting bears becomes the same as bearing arms. The illogic of the claim is easy to demonstrate. Quakers were religious pacifists opposed to war. Thus, a Quaker might bear a gun in pursuit of a deer, but he would never bear arms. To be conscientiously scrupulous about bearing a gun makes you a vegetarian, not a pacifist!

Although gun rights advocates have tried to claim that bearing arms did not have a military connotation at the time the Second Amendment was ratified in 1791, they have never been able to provide a body of evidence to support   their claims. The only evidence they have produced is a single text written by the losing side in the original debate over the Constitution. Substituting the ideas of the losers for the winners turns history into a science-fiction fantasy, in which one might as well argue that the patriots lost the American Revolution, or the South won the Civil War.

For better or worse, the real Second Amendment links the right to bear arms with a well-regulated militia. If Americans want to change this language, it will have to be by the slow and uncertain process of amending the Constitution. Distorting the past for ideological reasons is unacceptable, in the cause of either gun rights or gun control.

http://www.sltrib.com/opinion/ci_2545188


*This columnist is confused on so many levels that is hard to know where to being critiquing his work, but this is a valuable insight into core gun-grabber beliefs.  This falls under the category of "Know thine enemy". - FW

[ShadowMover]

Is it possible the preamble was to regulate the 'militia' to preserve a free state, by keeping well armed civilians as a counterbalance?  It didn't say the militia should be well armed, but well regulated.

[PA-Joe]

I understand that originally the Bill of Rights was prepared by the States as a means of protecting them from the new Federal government. During the adoption process the Feds turned the Bill of Rights around and made them the people's tools for protection the people from the state governments! Therefore the people have the right to keep and bear Arms.
This wasn't done to allow people to go hunt for game! It was for protection from the government!

[alsatian]

First, you ought to all read the document released by the US Justice Department yourself.  I did, and it was fascinating.

On the matter of preambles, the comments of the journalist notwithstanding, the point made forcefully in the Justice Department advisory is that preambles are not restrictive or limiting in legal language.  It doesn't matter WHAT is said in a preamble, it cannot be used to limit or restrict the operative language which follows.  This is spelled out in the Justice Department advisory, and it is just a little disingenuous of the columnist to blow this off.  It happens that legal claims in patents have (1) a preamble, (2) a transitional phrase, and (3) a plurality of structural elements in which the legal boundaries and extents of the letters patent ultimately reside.  The preamble does not legally limit the claim (thus, "A system to communicate with a wireless handset, consisting of:" is no more restricting than "A system, comprising:").

On the matter of the distinction between "bearing arms" and "bearing guns", I don't recall what the Justice Department had to say on this topic, but I recall that it resolved the question in favor of an individual right to keep and bear arms/guns.

I highly recommend those of you who have an interest in your second amendment rights to read this Justice Department document.