Why the Second Amendment is Not a Critical Amendment
“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.”- The Second Amendment to the Constitution of the United States
The purpose of this essay is not to call for the abolishment of the 2nd amendment, but to merely put the importance of the 2nd amendment in a different perspective. Before some readers go batshit over my critique of it, know that I am a limited supporter of the 2nd Amendment for two reasons: 1. A person has a right to protect themselves or to use firearms for hunting or sport. 2. The Government should not be the only one capable of violence. Now, some readers will automatically say my second reason is enough for why the 2nd Amendment should not be infringed but I ask this: We have limitations on the 1st Amendment, then why shouldn’t we have restrictions on the 2nd? My critique of the 2nd Amendment will be set against the other Amendments based on the practical use of their applications and how their use has brought along positive change to the society of the United States. All of the case laws I have used for evidence are Supreme Court Cases.
-The 1st Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In my opinion, the 1st Amendment is the most powerful amendment because without it then I wouldn’t be able to write this or for you to read it. We live in a country where the freedoms of religion, speech, press; and assembly serves as the fundamental and necessary basis of our society. We live in a country where we can openly question and mock the government without being arrested; except for the Sedition Act of 1918, which the Government infringed on the individuals’ freedom of speech. We live in a country where you can worship anything you believe in and might even get tax exemption status, no matter how ludicrous your beliefs are (Scientology). Consider this: we have such high regard for the 1st Amendment that we even let hate groups like White Supremacist or the Westboro Baptist Church publicly assemble as long as they are not enacting violence or starting a riot.
Also, consider the press who, in theory, and proven in history, serves as a check and balance against the government. A great example of this would be Washington Post reporters Bob Woodward and Carl Bernstein, who reported the Watergate Scandal which eventually leads to the impeachment of President Nixon. Despite what people think of today’s wayward press, they still serve an integral function for our government.
The First Amendment has been used effectively since it’s ratification to help promote change in our society. An example of this would be the Women’s Suffrage Movement which led to equal rights for women. Another example and maybe the best one is the Civil Rights Movement. Now, for this example, the leaders of the Civil Rights Movement, Dr. Martin Luther King Jr., and Malcolm X, had opposing views on how to achieve equality among blacks/minorities and whites. Dr. King had the non-violence approach against opposition with power, weapons and the law on their side; while Malcolm X had a militant approach, sometimes advocating violence to bring Civil Rights into reality. Looking back on history, we can see that Dr. King’s approach was the most effective compared to going full Malcolm X, which may have started a race war within the United States.
I used Dr. King’s strategy as an example because of the staunch supporters of the 2nd Amendment whose belief stems from the fear of the government overpowering them, and they need guns to compensate for that. Dr. King and millions of minorities were oppressed and overpowered but were able to make a significant, positive change to society without resulting in mass violence.
Despite the high power and freedom, the 1st Amendment grants to every citizen, there are restrictions on it such as: Libel (New York Times vs. Sullivan, 1964), Child Pornography (New York vs. Ferber, 1982), and “Fighting Words” which are not protected by the 1st Amendment (Chaplinsky v. New Hampshire, 1942).
-The 2nd Amendment
I am going to leave my critique of the 2nd Amendment for the end.
-The 3rd Amendment
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
I got nothing on this one.
-The 4th – 8th Amendments
The 4th- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The 5th-“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The 6th-“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The 7th- “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.”
The 8th- “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
I have chosen to group the 4th through the 8th Amendments together because they’re interconnected when it comes to our justice system; also, to write about each one’s great significance would take books to write and not paragraphs. Our Founding Fathers found it critical that they spelled out what the government is capable of and what rights the citizens have when it comes to the justice system. Unreasonable Search and Seizures, Due Process, the Right to a Fair and Public Trial; a Jury and No Cruel or Unusual Punishment must be guaranteed to every citizen. When I was a Police Officer, I had a supervisor make this clever joke, “We can do our jobs better if we got rid of the 4th Amendment.”
We judge our justice system today as being biased and unfair to certain citizens based on the type of crime, their ethnicities and financial status (which I hesitantly agree with) but imagine life before these 5 critical amendments. Imagine you’re being accused of being a witch, your house was ransacked without a warrant, and they found some erroneous evidence against you. You are given a trial in a kangaroo court, and you have to prove your innocence by being drowned or having heavy stones placed upon your body until your break. This happened in our country during the early Colonial Period when our ancestors first settled here. Now the reason the Founding Fathers have written these Amendments were not that of the witch trials, but because of our countries’ prior treatment from England; but I digress.
These 5 Amendments compared to the 2nd Amendment is used on a constant basis throughout our country. It is unimaginable how many times, by how many citizens, have used these amendments from their conception; by far, these amendments are crucial and priceless for every citizen. Yes, I can give essential cases such as Miranda v. Arizona, 1966; which gave birth to the famous Miranda Warnings, which police must provide to citizens before obtaining any statement which would be used in a criminal case. Or, the case of Mapp v. Ohio, 1961; which mandates state and federal courts do not use evidence in a criminal prosecution which was illegally obtained by the government. I can name numerous cases to support my claim of how these 5 Amendments are vital to us and the positive impact they have on our culture compared to the 2nd Amendment, but to continue to do so would be asinine.
-The 9th Amendment:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
What the fuck does that mean? I honestly had a hard time grasping the 9th Amendments’ language and its application. I think the Founding Fathers needed a filler amendment, so there wasn’t an odd number of amendments.
-The 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The 10th Amendment is crucial in which it limits the Federal Governments power to what the Constitution only grants it. Meaning, the Constitution, the sovereign states and its people are the ones who grants the Federal Government power and not vice versa. Ironically, the case I am using as an example is Printz vs. the United States, 1997; which the Supreme Court ruled the Brady Handgun Prevention Act was unconstitutional because the Executive Branch required the States to enact a federally mandated program through state agencies and not the Executive Branch. Another example is United States v. Alfonso D. Lopez, 1995; which limited Congresses power of the Commerce Clause because Congress passed the Gun-Free School Zone Act of 1990; which meant that Congress did not have the ability to regulate gun control near schools because it did not affect interstate commerce.
How ironic is it that I am using Supreme Court decisions on guns to support my argument on why the 10th Amendment is more important and beneficial than the 2nd? The 10th Amendment has more relevance than the 2nd Amendment because it is a check and balance, for it divides power between the Federal and State governments. The purpose of these cases was not to show the power of the 2nd Amendment but to show why the 10th Amendment is relevant in making sure that our Federal government does not become too powerful by keeping the States’ sovereign.
Also, Congress did pass the revised Gun-Free School Zones Act which used proper legal language to state that guns did fall under the Commerce Clause.
-The 11th Amendment:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
To be frank (Pun!), I cannot argue why the 11th Amendment is directly more beneficial than the 2nd, besides the fact it gives the States sovereign immunity from other states and foreign entities without their consent. I would venture a guess that the 11th is beneficial for not causing a legal and financial gridlock among the states.
-The 12th Amendment:
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person has a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
This Amendment is more relevant and meaningful (even though the 20th Amendment changed this Amendment) then the 2nd because we needed clear instructions on how to fairly elect the two most powerful men in the United States. Indeed, this is used to lay out a procedure on voting for the President.
-The 13th Amendment:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Congress shall have the power to enforce this article by appropriate legislation.”
Do I really need to explain why this one is more important and beneficial than the 2nd Amendment?
For the rest of the essay (and to not further bore you), I am going to list just the section of the rest Amendments which are relative to the argument. I am doing this because some of these Amendments are long and serve as amendments which help the Federal Government function smoother.
-The 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This is a tremendously important Amendment because it stated that no state should deprive any citizen of their unalienable rights, due process or equal protection. This was made after the Civil War because of the freeing of slaves, and at the time the Bill of Rights only applied to the Federal government and not the States. This Amendment was created to ensure that all people born into the United States and even non-citizens, are not to have the Bill of Rights infringed upon by the States. The 14th Amendment has benefited our society in many ways, such as: the reversal of racial segregation in Brown v. Board of Education, 1954; interracial marriage no longer being illegal due to Loving v. Virginia, 1967; same-sex marriage no longer illegal due to Obergefell v. Hodges, 2015; States cannot deny an individual’s 6th Amendment right to a free council in Gideon v. Wainwright, 1963; and the protection of reproduction rights for women in Roe v. Wade, 1973.
There are numerous cases which the 14th Amendment has affected our society for the better and some that are debatable; never-the-less, this powerful Amendment is an amazing and heroic piece of legislature guaranteeing every citizen our unalienable rights.
-The 15th Amendment:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Again, do I need to make a case for why this one is more important than the 2nd?
-The 16th Amendment:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
I’ll yield to the 2nd Amendment on this one because everybody hates taxes.
-The 17th Amendment:
“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”
This Amendment is for procedural purposes, and it is beneficial because it helps our Congress function; at least in theory.
-The 18th Amendment:
“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”
The 2nd Amendment is in a Catch 22 compared with the 18th Amendment because it was ridiculous to prohibit alcohol. What right does the government have to tell us how to treat our bodies? Also, Prohibition gave power to the black market and the mafias. The other side of this is that it was legal for the mafia to purchase guns to carry out their heinous and violent acts. But, even if guns were illegal, then the mafia would have obtained illegally. For the sake of argument, the 2nd Amendment is more beneficial than the 18th.
-The 19th Amendment:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Again, do I need to explain why this one is more effective? It’s pretty rhetorical.
-The 20th Amendment:
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin…”
Again, this one is a procedural Amendment which is intended to keep our government functioning.
-The 21st Amendment:
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”
I yield to the 2nd Amendment on this one.
-The 22nd Amendment through the 27th Amendment:
To finish the essay, I choose to skip these because these are more procedural Amendments to help the Federal Government function, with the 26th being the age a person can vote. The argument I will make again is that they are beneficial to our society because they help our government function.
The 2nd Amendment:
As I stated in the beginning, I am a limited supporter of the 2nd Amendment which means I do support Americans owning firearms but I am for Federal and State government restrictions. My logic behind this is that we have restrictions on narcotics and alcohol because it is a public safety and health concern; then why not have restrictions on guns also, since it is becoming a systemic issue within our culture. I draw the line over the obsession with guns such as the need to own high powered or military grade weapons. As I argued, there are more impactful and influential Amendments than the 2nd, but people believe guns are the most powerful one they have against the government; which our history says otherwise. I am supportive of people having guns for home protection, especially in rural areas where there are no police for miles, and in urban areas where there are high crime rates. I am supportive of people having shotguns and rifles for hunting or sports competitions; Hell, I own a Glock, and I enjoy going to the gun range. But, I draw the line over citizens owning military grade weapons, assault rifles and the poisonous ideology preached by the NRA.
Keep in mind; the Founding Fathers made the Constitution a living document (meaning it can be amended) because they understood that there was going to be problems they could not fathom and the Constitution can be adapted to solve those problems. When they wrote the 2nd Amendment, it was when they just finished a war with England, and they had muskets and cannons.
To answer a common argument of paranoia that people say they need guns to protect them from the government then look at the war we have been in for half of my life. Our country has fought against an enemy who uses guerilla tactics and $25 parts from Home Depot to stop sophisticated armored vehicles; who was able to hold their own against the world’s greatest military and its allies. So, if the government was trying to take over, then rest assured that you have a chance of beating them without an AR-15. Plus, I like to think that there are Leaders in the military would rather fall on their sword then to give the order which would violate their sacred oath to the People of the United States.
Keep in mind; an AR-15 won’t do shit against a Drone, a Nuclear Ballistic Missile Submarine; a Howitzer, a Navy Carrier, an Apache Helicopter; the U.S. Marines, the Special Forces, or classified military capabilities we have never heard of…etc. You are going to have to trust that our military, its members, would instead commit mutiny and treason then violate our sacred rights they had sworn to protect. And to use the argument that you need military grade weapons just in case the government takes over is an insult to those members in the military because you are saying that you trust them enough to fight our wars, but you can’t believe them to not cross the line against the People. Yes, like any population there will be division and some will blindly follow orders while others will do what’s right, no matter the cost.
The Good Guy with a Gun Theory is not feasible because everybody has a different response to high stress (fight, flight or freeze), but asking a random person with limited to no tactical/mental training to take another life is a huge liability. When your heart starts racing your perception of reality is inhibited, and there is a good chance you could miss and hit an innocent bystander. The only way to overcome this is through intense training or experience such as what the Infantry, S.W.A.T. and the Special Forces go through.
I wrote this essay because I felt compelled to after the shooting which took place in a Marjory Stoneman Douglas High School in Parkland, FL. But, it also comes from a personal experience I had with a shooting when I was a cop. Out of respect, I am going to keep details to a minimum. I responded to a shooting which I was going to be the first Police Officer on-scene. As I sped to the location, my adrenaline was going, and I was filled with the selfish vigor of me thinking I was going to get myself into some heroic action. I was wrong. When I arrived, I saw her body on the ground with her boyfriend screaming in agony for help, her friends and roommates were crying and looking for me to save her. I froze for a moment because that was when I met death and realized how real being a cop was. I admittedly went to work trying to save her with the roommates’ boyfriend (who was a Corpsman in the Navy). We both tried everything we could to save this woman’s life, and I remembered looking into her eyes as I was giving her CPR and seeing her pass away.
It’s been years, and the case is still ongoing, but the detectives have made arrests and found out it was a robbery that went wrong. It took me years to get over the guilt of not being able to save her. Even as I write this, I have to hold back tears because I wished she didn’t die. I wish this woman I have never known were still alive. I wish for no person ever to know what it feels like to die like that. I wish for no other person to witness their loved one die a senseless, violent death. I hope this essay, her story, helps one person understand that guns are not more important than a single life.
I hope we can come together as rational people and come up with a solution which works for all Americans, even if it’s not perfect, but it is a worthwhile compromise. But, I fear our Politicians and the NRA will do what’s best for themselves and continue to be indifferent to the fact that guns are built for killing, and an innocent life is not worth the price. There are many factors which tribute to the high rate of assault and homicides with firearms such as the media, government policies, mental health; poverty and how our society is currently operating; but guns are also part of the issue, and we need to let the better angels of our nature with our rational minds come up with a solution.