Second Amendment of the United States Bill Term Paper
- Length: 9 pages
- Subject: Law - Constitutional Law
- Type: Term Paper
- Paper: #92482506
Excerpt from Term Paper :
second amendment of the United States Bill of Rights, namely the right to bear arms.
Looking at how each individual argues the points and brings out their own points-of-view as to whether the right to bear arms is being misused or is being held in check by a misinterpretation of the legal terminology.
The Right to Bear Arms
When the Thirteen Colonies declared their independence in 1776 they broke away from one of the most powerful nations in the world at the time, with the signing and ratification of the Bill of Right and the Constitution they brought forward a series of legal documents that were envisioned to provide for any instance and grievance they had felt under Great Britain. Moreover, the idea of removing themselves from any contact with Great Britain was to secure a free future from the tyranny of the Crown.
However it has to be asked did the Constitution of the United States and the Bill of Rights actually avoid the tyranny of George III that had been described within the Declaration of Independence of 1776?
Between the eleventh and twenty-eight of June 1776 Thomas Jefferson with the consent of the Continental Congress prepared a document that was to reshape the face and history of many nations across the globe, especially the histories of America and Great Britain.
The Declaration of Independence or to give it its full legal title "The Unanimous Declaration of the Thirteen United States of America" is the most cherished document of America's history. It is symbol of liberty and freedom of oppression for many Americans.
Jefferson's words were not meant to be of any philosophical debate; rather the words were an inspiration for the hearts and minds of the oppressed members of the thirteen colonies and an accusation against the King of England George III.
Jefferson is clearly stating that all he and the Continental congress wish for is freedom under the natural state that God had ordained. Jefferson's words and philosophical ideals were not new the ideals of individual liberty that John Locke had previously expressed.
Rather Jefferson took these truths that were self evident to any free thinking man and set forth a list of accusations and grievances against the George in a systemic and legal way to justify a severing of the bonds that held the thirteen colonies to Great Britain.
The Constitution of the United States was written in the year 1787 and ratified by the thirteen colonies in 1789. It is made up of seven Articles each concerning a different aspect of government, it is back up by the Amendments to the Constitution of which to date there are twenty seven, however in 1789 there were none.
The aim of the Constitution was to serve as the law for the newly formed United States of America, and to form a new republican style government that would have three sections as laid out by Montesquieu's theory of the separation of powers, the judicial, executive and legislative.
The Bill of Rights is actually the first ten amendments of the Constitution, each one was written on December fifteenth 1791, they are:
Amendment I [Religion, Speech, Press, Assembly, Petition]:
Amendment II [Right to Bear Arms]:
Amendment III [Quartering of Troops]:
Amendment IV [Search and Seizure]:
Amendment V [Grand Jury, Double Jeopardy, Self-Incrimination, Due Process]:
Amendment VI [Criminal Prosecutions - Jury Trial, Right to Confront and to Counsel]:
Amendment VII [Common Law Suits - Jury Trial]:
Amendment VIII [Excess Bail or Fines, Cruel and Unusual Punishment]: Amendment IX [Non-Enumerated Rights]:
Amendment X [Rights Reserved to States].
The Bill of Rights is a guarantee for all citizens of the United States of America.
In looking at the new Constitution and the Bill of Rights there is clear evidence that the founding fathers of the new United States of America remembered well the lessons they had learned under the tyrannical rule of King George III. The people had suffered many had been murdered by the British troops for menial reasons and in many ways had no legal recompense.
The new laws gave power to the people, the right to have their say without fear of being imprisoned, protect their homes, and a protection from wrongful seizure of goods or undue punishment were given to the citizens. No more would they have to fear the redcoats of George III. They were free.
It is the second Amendment that has caused to be the most misleading Amendment of the Bill of Rights, through out its brief history citizens of the United States have continually misinterpreted this Amendment either deliberately or by genuine mistake.
So what is the Amendment that has caused so much debate:
Second amendment of the constitution "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 United States appeal court in 1973 stated "It must be remembered that the right to bear arms is not a right given by the United States Constitution" (cited in Abrams). Abrams provides us in his article "What Right to Bear Arms'?" after quoting from the above appeal court statement Abrams asks the question "No right to keep and bear arms? After everything we have heard about the second Amendment of the Unites States Constitution?"
Since the mid-1800's Americans have tried to defend their rights by their right to bear arms, they have argued the Second Amendment, since this time courts have replied with one comment, this in essence is exactly the same as the 1973 appeal court ruling. So why in the twentieth and twenty-first centuries are people still trying to push the second Amendment? Why have they forgotten or why are they ignoring the law?
Looking at the second Amendment and its interpretation there is no mention of the "right to bear arms" outside the idea of the state militias, every case the courts interpret concerning the Amendment are within the scope of the militias (Abrams). Furthermore, the courts argue that the second Amendment does not give a citizen the right to carry a concealed weapon, possess a firearm, or "bear an arm for a lawful purpose" (Abrams).
The National Rifle Associations advertisements regarding bloodied Chinese students, the writing upon the posters states that if the Chinese had had the right to bear arms through the second Amendment they might have been able to fight the despotic government (Abrams).
These advertisements again have brought open the argument of the how the second Amendment fits into society yet again. However, the courts are adamant in their stance on the interpretation of the Amendment. It was written with the militias in mind and the courts have reasoned that that is the case. (Abrams).
Abrams finishes his article by quoting from one Justice who has made remarks concerning the second Amendment. Justice Douglas states "A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment...designed to keep alive the militia" (cited in Abrams).
In another article "Slicing Up the Second Amendment" by Michael Kinsey discusses the right of militias to arm themselves but also states that the Amendment does not provide aid for individual citizens to arm themselves. Kinsey then moves on to discuss the First Amendment and free speech and how citizens react to this.
It can be seen that the political parties have their own ideas on the Amendments, Kinsey uses the liberals for example that if they were to argue the Second Amendment as they argue the rest then many law professors would arguing for mandatory gun ownership (Kinsey).
Kinsey draws upon an article by Don Kates which was published in the 1983 Michigan Law Review. Kates points out that when the Second Amendment was penned all able bodied men formed part of the militia. This argument is very weak for it is now not necessary for all able bodied men to be part of the militia and therefore does not give them the right o bear arms (Kinsey).
Kates is clearly in favour of "the right to bear arms" for citizens he argues that the words "right of the people" appears several times in the Bill of Rights. Furthermore he brings forth the idea that the Bill was written with the intent to be a similar copy to the English Bill of Rights that alludes to the rights of citizens to keep guns in their homes there is no mention of being part of a militia (Kates).
However, the actual article that Kates refers to was set out in 1688 after the Glorious revolution when the Jacobite King left the country and William of Orange became King. The actual article states "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law." By looking at this article we can see that Kates has totally misinterpreted the article. They may only bear arms in…