How Guns Can Be Banned Even With the Second Amendment.

The Second Amendment has gotten a lot of play in and around the news lately. There are segments of our society that think the second amendment is absolute.  Well, its not and here is how it is not.

The United States Constitution is the law of the land. Regardless of your interpretation of natural law or common law, the Constitution spells out many things up to and including the “Right to Bear Arms.”  I think the one thing that both sides can agree on is the specific wording of the second amendment. Interpretation vary a great deal but the wording does not. As most people know there are basically two versions of each law. The literal interpretation of the law and the spirit or intention of the law and the variations between those two points. The body for interpreting these laws and the one that is tasked with finding a balance between the literal and intention of each law is the Supreme Court of the United States. No matter your opinion of their performance of if you agree with the purpose of the Supreme Court the fact remains that for over 250 years it is the final say in constitutionality of any law. So how can guns be banned and not run afoul of the United States Constitution. Understanding that this depends on the makeup of the Supreme Court as far as who the justices are, for this to happen.

If the will and the right people were on the Supreme Court, a law could be passed banning firearms. Lets say for the purpose of this example, that Ohio passed a law banning all handguns over .22 caliber. Admittedly, this would probably never happen but follow along. This law would be immediately challenged in court. The appellate courts could swing either way on if it was or was not constitutional. This would finally land the law into front of the Supreme Court, assuming they didn’t let a lower ruling stand. This brings us to the interpretation of the law. If five of the nine justices agreed that since the law was only banning certain calibers and not all guns it could be said to be in compliance with the Second Amendment.

How can that be? Simple really. The Second Amendment 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.” Given that not all guns were banned and only specific types were banned the spirit of the Second Amendment is still intact. See the right, the one that is for each person to be able to bear arms is not infringed. Each person could still bear arms but specific calibers of handguns would be limited. The right would not be infringed upon only the type.  Under the law, the wording of the law is where most rulings stand, followed by the interpretation of the law itself. By removing hand guns you are not removing the right, only limiting how the right is applied.

Let me give you an example. If there was a Constitutional amendment that said all people have the right to use silverware for eating and this can not be infringed and a state said all people eating dinner must use a fork and not a spoon, the law could still be constitutionally valid. Sounds silly, I know but that is how things work… or supposed to work. Practice always differs somewhat.

We can even change it up to say, that it is legal to carry a sword but not a gun. Swords are still used by the military and are considered military arms. Ergo, they would fit within the strict definition of the law. Of course, it would be a little silly and quite a stretch but it will still comply with the letter of the law.

The Supreme Court in Heller and Mcdonald has already ruled there can be prohibitions and limitations on the second amendment. That the 2A is not absolute. Technically all rights have limitations. So when the pro gun lobby says, the Second Amendment prevent the government from banning guns, technically under the law that is patently not true. It can be done. Will it ever be done? No, I don’t think so and nor should it but it does demonstrate that the pro gun lobby should stick to using better arguments.

 

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