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By Raymond Kraft
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I have been doing a little transcendental meditation on the subject of the Second Amendment to the Constitution of the United States of America, the one that says “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.”
Yet many people among us claim the right to infringe this right of the people.
And while meditating my way through the pages of the May issue of America’s First Freedom, the Second Amendment magazine from the NRA, and the excellent ChronWatch article by Matthew Holmes (29 April 2005) entitled When 23,000 Gun Laws Are Not Enough, a little enlightenment overtook me, as I like to think it does now and then, and I deduced that it is time to resolve the burning question of what “the right of the people to keep and bear arms” really means once and for all, and at a national, constitutional level.
First, most of the 23,000 gun laws, give or take a few, that the various State legislatures have passed in the name of “gun control,” and the pending Illinois HB2414 that proposes to ban the ownership and possession of all semi-automatic weapons by private citizens in Illinois seem - to me - to be ultres vires acts of the States, reaching beyond their power and authority, for only the United States Courts, and not the individual state legislatures and judges, have jurisdiction to construe the meaning and intent of the Constitution, and only the United States Congress has the power to amend it (although, of course, any amendment must be afterward ratified by the states). I.e., the interpretation of the Constitution in general, and the Second Amendment in particular, is a Federal issue.
The states, as I see it, do not have the Constitutional authority or jurisdiction to determine the meaning of the Constitution, or to amend it, yet every state law that attempts to infringe the Constitutional right of the people to keep and bear arms is an attempt to define, interpret, construe, limit, and amend the Second Amendment.
The essential issue here - whether the Second Amendment means what it plainly says, that the right of the people to keep and bear arms shall not be infringed, or whether the right of the people is subject to infringement by the States in the name of “gun control,” needs to be settled, finally, and clearly, and I think the best way to settle it is to adopt the 28th Amendment to the Constitution of the United States, which should be known as The Self Defense Amendment.
When the Constitution was adopted, America was largely a frontier and had only recently rejected the heavy hand of England, by force of arms, and the idea that the right to keep and bear arms both as a means to ensure political freedom from tyranny, and as a necessity for self defense, was so fundamental to the thinking of the time that the Second Amendment is one of shortest. In the context of the 18th, and 19th, centuries, it needed no elaboration. Then, the idea that the right of the people to keep and bear arms should be restricted, or eliminated, or infringed, was unthinkable.
Today, even if political tyranny is not an immediate danger in America (although always a potential one), the threat of crime is. There have been more Americans murdered in California in the last two years (more than 4,400) than killed in combat in Iraq (less than 1,600).
The possession of a gun is the great equalizer between the small, decent, and weak, on one hand, and the big, ruthless, and strong on the other. Thus the right to keep and bear a firearm is essential to the fundamental right of self-defense, for without a gun the small, the old, the infirm, and the weak, are defenseless.
Without the right to own and possess a gun, the “right to self-defense” is eviscerated, and means no more than the right to drive nails without a hammer. Take away the tool, and you take away the “right.”
American law defines the doctrine of self-defense thus: You are privileged to use all necessary force, including deadly force, to defend yourself, or another, from an imminent threat of death or bodily harm.
If the right of self-defense were to be lost, whether legally or in fact, de jure or de facto, it would give the thugs and criminals the right, or at least the freedom, to inflict bodily harm and murder on the rest of us with impunity, since we would have no right, or no ability, to defend ourselves. Sure, they might be prosecuted later, but convicting the perp after the fact isn’t going to bring me back to life.
And if we have no effective right to defend ourselves, i.e., if we have been disarmed, we might as well have no legal right to defend ourselves or others.
If the tools we can use to defend ourselves are outlawed, then the right of self-defense is emasculated, eviscerated, vacated - it becomes meaningless to have the right if we don’t have the tools to enforce the right. And for those of us who are not the biggest and meanest Mongos on the block, the most effective tool we can have is a gun.
Granny with a gun is a crime deterrant. Granny without a gun is dead meat. The Liberal Left Gun Control Lobby, intellectually incoherent and vacuous as it is, wants to disarm Granny and the rest of us, by vacating, de facto, the Second Amendment, and removing guns from the hands of lawful people, so only the criminals who flout the law will be armed. As the bumper sticker says, when guns are outlawed only criminals will have guns. Simple, but the logic is impeccable.
The gun-control Democrats, intellectually incoherent and vacuous as they are and in thrall to the Liberal Left Gun Control Lobby, while ostentatiously the party of, by, and for the “little people,” nevertheless want to disarm the “little people” and leave them, us, defenseless against crime and tyranny.
The right to effective self-defense is essential to Civilization itself, for if the small, the old, the weak, the decent and civil people are unable to defend themselves, the thugs and tyrants rule, the barbarian hordes take over.
While I am generally opposed to new Constitutional amendments as the answers to every political debate, I think this one is so fundamental to freedom and ultimately to civilization that only the 28th Amendment, The Self Defense Amendment, can settle the issue as it should be settled, and end the quibbling over the meaning of the Second Amendment as it should be ended. And so I offer the following:
Amendment XXVIII: Self-Defense (Proposed)
1. The Right of the People to keep and bear arms as specified in Amendment II of this Constitution is essential to the fundamental right of self-defense, and the defense of others, and is personal to each Citizen and lawful resident of the United States.
2. Neither Congress, nor any State, shall make or enforce any law which impairs the fundamental right and ability of any person to defend themself, or another, from a threat of death or bodily harm.
3. Neither Congress, nor any State, shall make or enforce any law which infringes the right of the People to own or possess firearms for any lawful purpose.
4. This Amendment shall not impair the power of Congress, or of any State, to:(a) Restrict the right of any person having been convicted of a violent crime to own or possess a deadly weapon.
(b) Restrict the right of persons unlawfully present in the United States to own or possess a deadly weapon.
(c) Restrict the right of minors to own or possess a deadly weapon.
(d) Restrict the right to own, possess, or use, a deadly weapon with the intent to commit a crime therewith; or to punish any crime, any attempt to commit a crime, or any conspiracy to commit a crime.
An Amendment such as this would clarify three important things:
First, that the right to possess arms is personal to each citizen, each individual, and not merely the collective right of government sponsored military and police forces - the debate that lies at the heart of the gun control issue.
Second, that the fundamental, common law right of self-defense necessarily implies the right to effective self-defense, and that neither Congress nor any State may abridge or impair that right.
Third, that as a matter of compelling public interest, the rights of convicted criminals, illegal aliens, and minors, may be restricted; and the use of any deadly weapon in the commission of a crime may be appropriately punished.
The onus for the criminal misuse of guns must be placed squarely on the criminals who misuse guns to commit crimes, and not on the lawful citizens who use guns appropriately for sport and competition shooting, hunting, and self-defense.
May 03, 2005
About the Writer: Raymond Kraft is a lawyer and writer living and working in Northern California. Raymond receives e-mail at rskraft@vfr.net.
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