The second amendment provides that a well-regulated militia was and is necessary for the security of a Free State but at the same time prohibited the infringement of the right of the people or the citizenry to keep and bear arms.
This provision should be appreciated for its dual approach to the matters of bearing arms. It facilitates and protects the right of the people to keep and bear arms while at the same time gives power to a well-regulated militia on the premise that they shall enforce the security of a the Free State.
- Historical context
The Second amendment was proposed by James Madison during the amendment of the American Constitution. The mischief it intended to tackle and avert is the failure of security for the states run by Americans at that time against the colonialists British. It also enabled the citizenry bear arms.
- Currency of the amendment
Modern America is no longer colonised. It has, however, a two tier government, the Federal Government and the State Government. The amendment can be interpreted today has granting the National Guard at the state levels legitimacy. As long as the militia is well-regulated, its existence is constitutional and protected by the law. This interpretation gives anti-Federalists some arsenal against the Federalists.
However, it can also be interpreted in light of the citizens’ rights to bear arms. The second limb of the provision clearly prohibits the infringement of the citizens’ rights to bear arms. It envisions a scenario where state government or government for that matter may justify the confiscation of arms or illegalization of bearing arms on the pretext of a secure Free State. This is a matter of liberal versus conservative interpretation of the constitution.
- Position on the amendment
It is my contention that the amendment confers on the citizens the right to keep and bear arms. This contention is premised on three main arguments:
One, constitutional drafting usually approaches the law either negatively or positively. While a good law is the law that is stated positively, a negative statement often is strong for it is expressly prohibitive. In this case, the second limb of the second amendment is expressly stated in a negative manner. This illustrates the depth of the matter.
Secondly, constitutional drafting often embraces specificity and generality in draftsman-ship. Where the drafters envision a clear and express provision or clause, it states so specifically. It should be appreciated that a specific provision has more weight than a general provision. In this light, the second limb is specific, express and direct. It says, “The rights of the people to keep and bear arms shall not be infringed.”
Finally, if the drafters of the constitution did not intend that the citizens possess the right to keep and bear arms, then it is incumbent on them to so specify. The fact that the constitution has already been drafted does not justify its disdain. On the contrary, the critics ought to pursue the legal provisions that promote constitutionalism and the overall rule of law. The remedy herein is an amendment of the second amendment. If the majority’s decision should carry the day.
- The problem of the second amendment and its attendant right to the citizenry
However, the law does not operate in isolation. It has to take consideration of the political, social and economic dynamics. In addition, the law is dynamic and organic and not merely a dead piece cast on stone. With that in mind, it remains essential to appreciate the shortfalls that the provision occasions in society. There has been a tendency to abuse this right.
Citizens have misused their right to bear arms and consequently have used the weapons essentially guns on the unintended persons. This has led to a litany of solutions and outcomes. For instance, some States have effectively banned the conceal and carry laws that facilitate the possession of the weapons in public places. Others have applied a veiled and twisted interpretation of the law and consequently denied the right of the citizenry to keep and bear arms.
Glaring statistics and regrettable events have been showcased to show the outcomes of a liberal interpretation and application of the second amendment. Cases in point include the deaths of innocent children held hostage by distraught youths. The incumbency has set up policies aimed at gun control. At the top of the commission leading policy development and implementation is the Vice President Biden.
The solution lies in the law. The law is organic and dynamic. It suffices for the people. If in it fails to protect the interest of the people, then it should be amended to the extent of the inconsistency or equally repealed in substitute for a responsive and problem solving approach. This is the responsibility conferred upon the defended of the rule of law and constitutionalists.
The second amendment allows for the citizenry to keep and bear arms. However, this responsibility must be executed with utmost due care and diligence.
Kozuskanich, Nathan. "Originalism, History and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?" Journal of Constitutional Law 10.6 (2008): 414-443.
Speel, Robert W. "The Evolution of Republican and Democratic Ideologies." Journal of Policy History 2.1 (2009): 413-416.
Walters, Mark D. ""Legality as Reason: Dicey, Rand, and the Rule of Law"." McGill Law Journal 50.1 (2010): 563-586.