Constitution 101: The Second Amendment – Shall Not Infringe

St. George Tucker wrote the first systematic commentary on the U.S. Constitution and stood as one of the preeminent constitutional scholars through the 18th century. Tucker called the right of self-defense the “palladium of liberty.”guns

The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.

The Second Amendment was drafted and ratified to prevent the federal government doing just that.

As we have discussed over the last couple of weeks, the Bill of Rights was amended to the Constitution “in order to prevent misconstruction or abuse of its [the government created by the constitution’s] powers.”

Even among the strongest supporters of “gun rights,” Americans today hold the view that the Second Amendment allows for “reasonable” federal regulation of firearms. But as originally understood, the amendment includes no such exceptions.

Constitutionally speaking, federal government should not regulate the manufacture or private ownership of firearms.

At all.

Keep in mind, even without the Second Amendment, the federal government would have very little authority to craft firearms regulations. It may only exercise delegated powers, with all others reserved to the states and the people. We find the only power delegated to Congress relating to weaponry in Art. I Sec. 8 – “arming…the Militia.” The Constitution nowhere authorizes any general federal firearms regulating power.

Even so, under the original Constitution the federal government could conceivably regulate firearms in the process of exercising another legitimate power – particularly regulating interstate commerce. The Second Amendment slams that door closed.

…the right of the people to keep and bear Arms, shall not be infringed.

Infringe – v: Act so as to limit or undermine (something); encroach on.

Simply put, federal government may not constitutionally act in any way that limits the right to keep and bear arms.

So, while under the original Constitution, you could argue that the commerce clause empowers the feds to restrict and regulate the sale of guns, ammunition and gun related accessories across state lines, the Second Amendment supersedes the commerce clause whenever a given regulation encroaches or limits the right to keep and bear arms.

Note who the Second Amendment applies to: the people. All of them. Not just the National Guard or some select few.

Next week we will look deeper into the connection between the militia and the Second Amendment.

Trackbacks/Pingbacks

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