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Friday, February 15, 2013

The 2nd Amendment is ripe for new interpretation…again


Alan Singer is a social studies educator at Hofstra University in Long Island, New York and the editor of Social Science Docket (a joint publication of the New York and New Jersey Councils for Social Studies).  Apparently he has done his homework on the 2nd Amendment in research for an article in the Huff Post titled, “Does the U.S. Constitution Prevent Gun Control?”  The answer to this question is a resounding “Yes” if asked of the gun nuts and their head fanatic Wayne LaPierre, CEO of the National Rifle Assn. (NRA).

Wacky Wayne says the 2nd Amendment is sacred and an absolutist part of the Constitution that cannot be touched by gun control advocates.  Having been proven wrong on this several times already, this lunatic continues to rant and rave about gun owner rights in spite of the killings by firearms happening on a daily basis.  This sick ideology of rights over life itself is beginning to turn off a newly savvy American public.  LaPierre has used fear to make his point for years in the American Congress, NRA membership and the general population. 
 
 
President Obama has proposed new gun control regulations that range from universal background checks to banning assault rifles.  New York State passed their own law placing an immediate ban on semi-automatic rifles and pistols, shotguns, and other firearms with military-style features, requiring universal background checks prior to the sale of all guns and ammunition, making it easier for officials to confiscate firearms from the mentally ill, and increases penalties for gun-related crimes.  Singer ponders whether the law will survive.

In a conservative majority on the U.S. Supreme Court, they ruled that in the 2008 decision on District of Columbia v. Heller that the 2nd Amendment protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home and within federal enclaves.  The key here is “in the home” which doesn’t rule out but definitely leaves the door open to curbing the carrying of concealed weapons.  Yes, this is a separate issue but it does illustrate a potential crack in the 2nd Amendment that proves non-absolutism. 

Wayne LaPierre has accused the President of “undermining 2nd Amendment constitutional principles.”  Alan Singer counters with just how the apparently divine Amendment—at least to the gun nuts—could be in trouble.  He cites the conservative majority on the U.S. Supreme Court which leans to a “textualist” interpretation of the Constitution.  Textualism is defined by Wikipedia as follows:

A formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature {or forefathers/my words} in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law. 

Singer says, “In general I find most ‘textualist’ arguments forwarded by the Supreme Court's right-wing activists to be self-justifying contorted attempts to discover constitutional support for positions they already hold.”  An interesting observation when you consider Supreme Court Justice Antonin Scalia, one of the most conservative, has said that stricter gun laws could be possible under the 2nd Amendment.  This probably sent head NRA gun nut, Wayne LaPierre, gyrating into outer space but aroused the passions of all gun control advocates.

And it is here where Singer analyzes the Constitution in relation to the right of the people in connection with individual rights.  He says, “An examination of the Constitution shows a very clear and precise distinction between the term ‘people’ and ‘person’ or "persons.’"  Further, that America functions as a whole, not individually by states nor individual persons.  True, individuals do elect our lawmakers both local, statewide and nationally, but these same individuals acting separately can legally be limited. 

In the view of a textualist, “the right of the ‘people’ is a general statement of principle not a specific or individual right.”  Singer draws support from the Fourth amendment in its collective right of the people to be secure in their homes, papers, effects, etc., the right to be secure against unreasonable searches and seizures.  However, with probable cause, identifying the place to be searched, the persons (individual), things can be searched and seized with the proper warrant.  It just proves that there is no absolutist finality in this or the 2nd Amendment.

In conclusion, singer quotes the 2nd: "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." 

It is clearly referring to the collective “people,” in other words the country has a right to defend itself, he claims.  He does add, “there is no specific prohibition on limiting the access of individual ‘persons’ to dangerous weapons.”  Even so, this interpretation of the 2nd Amendment “provides an opportunity for even the most conservative Supreme Court Justices to support significant new gun restrictions approved by elected officials in local, state, and federal governments.  We can only hope for the best.        

 

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