By Terry | 2nd Amendment
I was working on my hunter friend’s computer at work the other day which was ailing. As the processes were taking some time to run, I picked up an issue of Guns and Ammo (December 2013) he had around and browsed through it.
On the last page was the closing editorial entitled “Let’s Talk Limits: Do certain firearms really constitute infringement?” As I read through it I was quite surprised at the conclusions the author was drawing. Particularly in a magazine entitled “Guns and Ammo”!
Since, I am not a subscriber to the magazine, apparently this caused quite an uproar as it should have. However, I just wanted to throw my 2 cents in the ring even though the end result was IMHO favorable.
The author of the article, Dick Metcalf, made the following statement in his article after printing the text of the amendment:
“Note carefully: those last 4 words say “shall not be infringed”. They do not say “shall not be regulated.” “Well regulated is, in fact, the initial criterion of the amendment itself…..I bring this up because way too many gun owners still seem to believe than any regulation of the right to keep and bear arms is an infringement. The fact is, all constitutional rights are regulated, always have been, and need to be.”
Now, bear in mind that the Bill of Rights arose out of much debate during the ratification conventions. In fact, considerably more representatives debated during the ratifying conventions than at the Constitutional convention in Philadelphia.
Without these debates and an agreement to include a Bill of Rights (which each of the 13 States already had), the Constitution would likely not have been agreed upon to be ratified by the States. Hence, the language chosen was legally specific and considered highly important.
Consequently, I wonder if this author of the aforementioned article writing in Guns and Ammo, truly understands the nature of the amendment he is referring to based upon his interpretation. It certainly did not seem so to me.
First of all, let’s consider the intent of the original Bill of Rights itself. It is essentially a list of what government can not do. Not a list of what it can do. The Bill of Rights refers to the rights of the people first and the States in some cases. It does not grant any rights whatsoever to the Federal government. In fact it clearly restricts.
So, Metcalf’s 1st mistake is to use an amendment from a document whose intent was to clarify the limitations of the Federal government as a grant of right to it! And from Guns and Ammo yet? And on the 2nd amendment as well? Whew, quite a surprise here.
The 2nd Amendment clearly reads, “the right of the people”. The Bill of Rights did not give that right to the people nor did the government of the States or the Federal government. It was already there by virtue of the fact that every free man has the right to protect himself, family and property. It is NOT a Constitutional right. It is a natural right that existed before the Constitution was ever framed. A right therefore of the people NOT that of government.
That is why it is specifically referred to as “the right of the people”. It is our right, not the governments- State or Federal.
The amendment also plainly states: “shall not be infringed”. The online Merriam Webster dictionary defines infringement as “an encroachment or trespass on a right or privilege” I would expect that this definition was no different at the time the Bill of Rights was put together. However, what is made clear in the 2nd amendment is that it is a “right” which is to say it is a power or privilege to which one is justly entitled.
Additionally, as previously pointed out, it is a right owned by the people. Not the government or authorities but the people. The Constitution does not grant the right, nor is the right being ceded to the government in any way as the language of the amendment makes plainly clear.
In actuality, the 2nd amendment affirms this right of the people in writing. The only right ceded to the government regarding this right is that of supporting and defending it along with the rest of the Bill of Rights and Constitution which is affirmed each time they take their oaths of office.
This is also true for the President as well who swears (or affirms) that they will “to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Fact chance of that happening these days it seems and that must change or we are doomed to tyranny.)
As for the regulation portion of the amendment, let’s be clear about the use of language there as well. The first portion of the Amendment states, “A well regulated Militia, being necessary to the security of a free State,” It doesn’t say “the” well regulated Militia. It specified “a” well regulated one. Which militia then is referred to therefore in this amendment? It obviously does not specify which one does it?
The words of this clause are a qualifying statement. They are used to qualify the 2nd portion of the amendment. They present a general concept to introduce the right itself.
In other words, it could be stated that “because” a well regulated militia is necessary to the security of a free state, the right of the people….. It is not a concession of the right. It is a statement of reason for the right to continue to be preserved for the people by the elected representatives of the people.
Let’s also consider what the word regulated might mean here as well since Mr. Metcalf claims that it means that it is an “initial criterion of the amendment itself”. Does the word in its context here mean that it a militia should have a gaggle of regulations placed upon it by the government? Or perhaps there is another intent offered there?
Regulate means to bring under the control of law or an authority. It also means to bring order, method or uniformity to something, in this case the militia. Now, since the sense that the militia was used in was that of a qualifying statement of the right which was affirmed in the 2nd clause of the amendment, we would logically expect that the 2nd definition which is that of bringing order, method and uniformity to the militia so that it was efficient in preserving the security of a free State would be more applicable than the first meaning of the word.
This would be particularly so since as previously stated, the original 10 amendments of the Bill of Rights was instituted to protect NOT grant rights. Read the amendments and see just how many refer to a ceding of power to the Federal government. Uh, like none.
Also, pay attention to the 9th amendment, even over the 10th:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Isn’t the 2nd amendment right to “keep and bear” one of those?
The 2nd amendment does not in any way grant control of this right to the government. In fact, it affirms against government having any say in controlling this right when it plainly states “shall not be infringed”.
Hence for Mr. Metcalf to state that all Constitutional rights are regulated, and therefore so is this one, is to miss the point of the amendment entirely. Again, I was quite surprised that a publication like “Guns and Ammo” printed this to say the least.
And, as it turns out, apparently so did others. There was an outcry for his ouster from the advertisers and subscribers alike. Dick Metcalfe was summarily fired. The editor, Jim Bequette, announced his resignation shortly thereafter. (See the articles below for updates. Notice the conciliatory tones of the media towards Metcalf from the major media outlets. And they wonder why no one trusts the media any more?)
I will expand a bit more on this issue in Part 2 as I think it is more important than we are led to believe by our media sycophants.
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