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Friday, January 14, 2011

The Right to Bear ALL Arms.

I submitted one of pieces of writing concerning the 2nd Amendment to the BYU Provo campus newspaper, called the Daily Universe, and they decided to run it on their opinion page for Thursday, 1/13/11's edition.  My argument, in response to an opinion piece written in response to the Tuscon, Arizona tragedy, concerning the need for legal limitations on what types of guns people may keep and bear, is that due to 2nd Amendment's wording, using the general word "arms",  Congress nor any other government entity or branch, be it federal or state, has the authority to limit the types of arms or firearms the people may keep and bear.  Because of the length constraints placed on the newspaper articles being published, my original version had to be thinned down considerably, and because my original version has more evidence that would help in persuading the reader, I will provide both versions, first the newspaper version, followed by my original version.  For readers of this blog, please read both.

Here is the article I wrote my piece in response to:



Newspaper Version:

BY Casey Beres
In response to Tuesday’s viewpoint “The right to bear some arms,” before we can consider whether or not the government should limit the types of firearms the people may keep and bear, we must first consider whether the government has the authority to do so.
While in what some would likely deem a “perfect world” the government would have no limitations, and have complete power to legislate however it pleased, we Americans, thankfully, do not live under such conditions. Rather, we live under a federalist, multi-tiered governmental system that was purposefully limited in its scope of powers, both in the specific enumeration of powers delegated to the different branches of the federal government, and in the Bill of Rights, which further limits those powers. 
I do not believe the federal government has such authority, as the Constitution now stands.  This is specifically because the Second Amendment uses broad language in the use of the word “arms,” stating “the right of the people to keep and bear arms, shall not be infringed.” Keeping this in mind, I think we are skipping a significant step in the argument over gun control. That step is delegating to the government the actual authority to limit arms. 
The wording of the Second Amendment is not specific as to what kinds of arms the people may keep and bear. We must remember that even back in the era when the Constitution was first written, there were different kinds of firearms. 
Had it been the intention of the framers of the Constitution, specifically James Madison, the author of the Bill of Rights, to limit the types of arms the people may keep and bear, I believe he would have purposefully used very particular language in writing what came to be the Second Amendment.
According to at least one American Revolution-era historian, Jack Rakove, in his book “Declaring Rights, a Brief History with Documents,” Madison did not approve of the wording of what came to be the First Amendment, which the Senate had revised behind closed doors.
Madison wanted very specific language in the First Amendment concerning religion and the right of conscience, but the Senate changed his wording. So, the House of Representatives then changed the wording again, with the help of Madison, before its final adoption. 
In addition, if we look at all the bills of rights for 13 of the state constitutions written in the 1770s and 1780s, we see the exact same wording as in the Second Amendment, namely the use of “arms” in general. Therefore, when the Second Amendment uses “arms” in general, as opposed to the more specific “firearms,” there is no attempt to limit or specify any particular kind of arms the people may keep and bear. 
Rather, individuals, according to the broad wording of “arms,” maintain the right to keep and bear “arms” in general, be it swords, spears, knives, bows and arrows, or firearms of any kind, indeed, anything that might be used to protect oneself, one’s property or one’s country. 
If Congress is to limit the arms the people may keep and bear, they must first be given the authority to do so, by means of a constitutional amendment stating Congress now has that authority.  It would also require very specific language, stating exactly what kinds of firearms or arms Congress would be able to limit or prohibit.
We must remember that American government is one of laws, and not of men or the will of men, be they the majority, the minority or individuals. As such, we must abide by the laws and make our laws in a lawfully established manner. 
In order to prevent the government from being able to interpret the Constitution as it pleases, which it cannot do (for Congress has not the power to legislate concerning the definition of words or meanings of clauses), and arbitrarily assume powers it truly doesn’t have, a constitutional amendment allowing Congress to limit the kinds of arms the people may keep and bear is in order.


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In response to Tuesday's article, entitled “The Right to Bear Some Arms,” I would like to discuss the authority of the government to legislate on limitations of the types of firearms that the people may keep and bear.  In America today, there are the two extremes of banning firearms outright, and having no limits on firearms, or rather, “arms,” whatsoever.  But then there’s the middle ground argument, one like Jades’, which suggests that instead of these two extremes, there should be limitations on what kinds of arms the individual has the right to keep and bear. 

While in what some would likely deem a “perfect world,” where government had no limitations, and had complete power to do whatever, and legislate however it pleased, “in all cases whatsoever,” to quote the 1766 British Parliamentary “Declaratory Act,” we Americans do not live under such conditions.  Rather, we live under a federalist, multi-tiered governmental system that was purposefully limited in its scope of powers, both in the specific enumeration of what powers the different branches of that federal governmental system are allowed to exercise, and in the Bill of Rights (and subsequent amendments), which further limited the powers that might be inferred from the somewhat broad language of the Constitution.  Therefore, I do not believe that the federal government has the authority, as the Constitution now stands, to limit what kinds of arms individuals may keep and bear.  This is specifically because the 2nd Amendment uses broad language in the use of the word “arms,” stating “the right of the people to keep and bear arms, shall not be infringed.” 

Indeed, the Oxford English Dictionary defines “arms” in this sense as “[i]nstruments of offence used in war; weapons. fire-arms: those for which gunpowder is used, such as guns and pistols, as opposed toswordsspears, or bows.”  Therefore, when the 2nd Amendment uses “arms” in general, as opposed to the more specific “firearms”, there is no attempt to limit or specify any particular kind of arms the people may keep and bear.  In other words, under the current 2nd Amendment language, the government does not have the authority to legally limited what kinds of arms the people may keep and bear. 

Therefore, I think we are skipping a significant step in this argument on limitations on the kinds of arms people may keep and bear.  That step is delegating to the government the actual authority to do so.  Back in the era when the Constitution was first written, there were only so many kinds of arms, and if we consider only firearms, we could limit the category even further.  But, the fact still remains that there were different kinds of firearms in those days.  Firearms in that era consisted of muskets, rifles (a musket with a grooved barrel, providing increased accuracy and range, making it a more deadly, as opposed to a smooth barrel musket), pistols, and cannon/artillery.  Thus, there were really only three kinds of firearms: muskets (rifles included), pistols, and cannon.  And even then, there were such things as multi-barrel pistols and multi-volley artillery, which made it possible for the wielder of said weapon to wound or eliminate more of the enemy in a quicker amount of time, which has been the weapons expert’s main goal since the invention of weaponry. 

But in accordance with the aforementioned definition of “arms,” considering the 2nd Amendment wording, it is not specific as to what kinds of arms the people may keep and bear.  Rather, it is broad, meaning “arms” in general.  Had it been the intention of the framers of the Constitution, and specifically the framer of the Bill of Rights, James Madison, to limit the types of arms the people may keep and bear, I believe he would have purposefully used very particular language in writing what came to be the 2nd Amendment.  This is because we know from historical fact, according to at least one American Revolution era historian, Jack Rakove, in his book “Declaring Rights, a Brief History with Documents,” on page 187, that Madison did not approve of the language and wording of what would come to be the 1st Amendment, that the Senate had revised behind closed doors.  Madison wanted very specific language in the 1st Amendment concerning religion and the right of conscience, but his wording was changed by the Senate, and then re-changed, with the help of Madison in the House of Representatives before its final adoption. 

And if we look at all the bills of rights added to each of the 13 state constitutions during the 1770’s and 1780’s, we see the exact same wording as in the 2nd Amendment, namely the use of “arms” in general, except in the New York constitution, which provides no clause concerning arms in its bill of rights.  And only one state constitution, Georgia’s, says the legislature shall have the authority to prescribe the manner in which the people may bear arms. 

Therefore, I do not think that, under the 2nd Amendment, the Congress has the authority to limit what kinds of arms individuals may keep and bear.  Rather, individuals, according to the broad wording of “arms,” maintain the right to keep and bear “arms” in general, be it swords, pikes, knives, bows and arrows, firearms of any kind, indeed, anything that might be used to protect oneself, ones property, or ones state/country, given the very broad definition of the word “arms.” 

Thus, if Congress is to limit the arms the people may keep and bear, they must first be given the authority to do so, by means of the Constitution.  This means that there would first need be a constitutional amendment that stated that Congress now has the authority to limit what kinds of arms people may keep and bear, and in very specific language, such as: “the right of the people to keep and bear arms shall not be infringed, except in those cases where the ‘arms’ being kept and born are capable of mass destruction in a short amount of time; thus, the Congress shall have the authority to limit what kinds of arms the people may keep and bear, by the limitations and description of the previous clause concerning weapons of mass destruction, but shall not have the authority to infringe the right of the people to keep and bear arms of a nature that are not capable of mass destruction in a short amount of time (perhaps adding those specific types of arms capable of doing so).” 

We must remember that in America, we have a government of laws, and not of men or the will of men, be they the majority, the minority, or individuals, even those individuals in the government.  And as such, we must abide by the laws and make our laws in a lawfully established manner.  I believe a constitutional amendment would be necessary because of this fact, and also because of the tyranny of the government in the form of assumption of powers it does not have.  In order to prevent the government from being able to interpret the Constitution as it pleases, which it cannot do (for Congress has not the power to legislate concerning the definition of words or meanings of clauses), and arbitrarily assume powers it truly doesn’t have, a constitutional amendment allowing Congress to limit the kinds of arms the people may keep and bear is in order.  Such a constitutional amendment would need to come first before discussing this matter as to whether legislation concerning the limitation of the kinds of arms the people may keep and bear should or should not take place.
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In reply to James Prestwich’s letter “Commerce Clause,” I would like to discuss the relation of the Bill of Rights to the Constitution’s 7 articles. The Bill of Rights contains the first 10 amendments to the Constitution, which by definition, altered the ratified Constitution, further limiting the powers enumerated in the 7 articles.

If the current Constitution contained no 2nd Amendment, I might be willing to concede your view that the Commerce Clause allows Congress to “restrict commerce in firearms as a product as long as the firearm or component of it crosses state lines during or after production.” But, the 2nd Amendment effectively amends Article 1 Section 8. Thus, Congress can’t prevent certain types of arms from being sold, bought, possessed, or transported by restricting the commerce of firearms or their components. The 2nd Amendment specifically prohibits Congress from exercising such authority via the Commerce Clause.


In Thursday’s article, I purposely refrained from commenting on whether or not Congress could regulate “who” in particular may keep and bear arms, as well as on whether Congress could regulate the sale/purchase/transport of arms in the form of specific requirements to be able to do so, or the specific manner in which this is to be done. Rather, my argument was that Congress cannot say that “weapon/firearm type A” may not be sold, bought, possessed, or transported by anyone, or prohibit the people from keeping and bearing arms in general, no matter how legitimate the reason, because the 2nd Amendment trumps and amends the powers delegated to Congress via the Commerce Clause.

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