There are two intertwined trains of thought in Constitutional Law Theory that relate and occur prominently in arguments about the 2nd Amendment - Original Intent, and Judicial Review.
Followers of the Original Intent school of thought maintain that the Constitution be interpreted according to what the founding fathers and authors of the Bill Of Rights intended; that is, what were they trying to establish?
Using the Original Intent philosophy, one can come across many different interpretations of the Second Amendment. A few prominent ones are:
A) It was necessary at the time to maintain a militia (effectively local farmers and such in the 1700's) to fight off any corrupt or authoritarian power, making the second amendment a rather expedient rule.
B) It was a rule put forth by the authors/founding fathers to make sure that in the United States there is a civil right to own and carry firearms, and there shall not be any law made against it without heavy consideration.
C) It was the intent of the authors/founding fathers to establish the right of individual states (under the Federal Government's umbrella) to regulate their own militias (akin to a state's National Guard).
Interestingly, this was not an argument in the Militia Act of 1903, establishing the National Guard.
Judicial Review is the power of a court (or courts, collectively) to review the constitutionality of a law. That is, a state or federal law that they perceive may be in violation of the U.S. Constitution. The theory of judicial review is significant in the interpretation of the 2nd Amendment because of the vague wording used. In virtually (if not all) cases of judicial review in regards to the 2nd Amendment, the courts (collectively) have ruled in favor of the 2nd Amendment being interpreted as a single person's right to own firearms.
That being said, there is a distinct difference between the right to bear arms as established by our founding fathers and the authors of the U.S. Constitution and the ability of the Government to regulate the manufacture and availability of said firearms. That is why there is legal weight behind the idea that a person cannot own a nuclear device, as someone tried to rationalize above.
The question is, what is the full scope of the government's legal right to regulate the availability of some weapons as opposed to others? That is, how does the government decide which weapons are legal for us to own and which weapons aren't?
Personally, I believe the authors of the Constitution were intending to create a civil right guaranteeing that the citizens of the United States would not be without weapons to fight off a corrupt and/or expansionist regime threatening the citizens' life and livelihood. However, I do believe that this right needs to be heavily regulated. I see no need for the average American to own an AR-15. There are special circumstances where it could be needed, but that should be an exception to the rule as far as I am concerned.
Followers of the Original Intent school of thought maintain that the Constitution be interpreted according to what the founding fathers and authors of the Bill Of Rights intended; that is, what were they trying to establish?
Using the Original Intent philosophy, one can come across many different interpretations of the Second Amendment. A few prominent ones are:
A) It was necessary at the time to maintain a militia (effectively local farmers and such in the 1700's) to fight off any corrupt or authoritarian power, making the second amendment a rather expedient rule.
B) It was a rule put forth by the authors/founding fathers to make sure that in the United States there is a civil right to own and carry firearms, and there shall not be any law made against it without heavy consideration.
C) It was the intent of the authors/founding fathers to establish the right of individual states (under the Federal Government's umbrella) to regulate their own militias (akin to a state's National Guard).
Interestingly, this was not an argument in the Militia Act of 1903, establishing the National Guard.
Judicial Review is the power of a court (or courts, collectively) to review the constitutionality of a law. That is, a state or federal law that they perceive may be in violation of the U.S. Constitution. The theory of judicial review is significant in the interpretation of the 2nd Amendment because of the vague wording used. In virtually (if not all) cases of judicial review in regards to the 2nd Amendment, the courts (collectively) have ruled in favor of the 2nd Amendment being interpreted as a single person's right to own firearms.
That being said, there is a distinct difference between the right to bear arms as established by our founding fathers and the authors of the U.S. Constitution and the ability of the Government to regulate the manufacture and availability of said firearms. That is why there is legal weight behind the idea that a person cannot own a nuclear device, as someone tried to rationalize above.
The question is, what is the full scope of the government's legal right to regulate the availability of some weapons as opposed to others? That is, how does the government decide which weapons are legal for us to own and which weapons aren't?
Personally, I believe the authors of the Constitution were intending to create a civil right guaranteeing that the citizens of the United States would not be without weapons to fight off a corrupt and/or expansionist regime threatening the citizens' life and livelihood. However, I do believe that this right needs to be heavily regulated. I see no need for the average American to own an AR-15. There are special circumstances where it could be needed, but that should be an exception to the rule as far as I am concerned.
Last edited by KEN-JENNINGS (2006-12-12 18:23:46)
