27 November 2007

Legal Times: Defining 'Arms' For Modern Man Is The Second Amendment's Real Conundrum

Just when you think the Legal Times is on the right track . . .

"With most constitutional provisions, we have little difficulty in concluding that the Framers would have intended them to apply to technologies developed after 1789, when the Constitution was ratified. The Supreme Court has very sensibly concluded that the First Amendment’s guarantee of freedom of speech and the press applies to television and the Internet and that the Fourth Amendment’s prohibition of unreasonable searches and seizures applies to wiretapping and thermal imaging. In those cases, application of the provision to modern technologies clearly carries out the provision’s original purpose without being unreasonable."

. . . Then they throw you this:

"In the case of the Second Amendment, however, we cannot conclude that reasonable Framers would have intended to give individual citizens a right to possess Stinger missiles, which can bring down large planes from miles away, or rocket-propelled grenades, which can also kill scores of people from long distances. Those weapons are so vastly different from and so much more powerful than the “arms” with which the Framers were familiar as to be different in kind. Most Americans would find such an application as unreasonable as constitutional protection for those crying fire in that crowded theater."

. . . But they come back to this:

"A more fundamental problem with power as the basis for distinguishing weaponry is that it would not further but is completely unrelated to the principal purpose of the Second Amendment, which was to ensure citizens an effective means of resisting an oppressive government. Limiting the term “arms” to modern weapons that are somehow comparable in lethality to weapons from the Framers’ time would exclude the very weapons that would be most effective today for military purposes. Modern hunting rifles, for example, while significantly more deadly than 18th-century muskets, would still be singularly ineffective in opposing a military force armed with machine guns, RPGs, and shoulder-launched missiles, not to mention artillery, tanks, and warplanes."

ARRRGH!!!! Read it for yourself by clicking here.


Anonymous said...

Sorry, but the "shot heard round the world" was fought by citizens holding arms equivalent to those of the British military - the best the world had to offer at the time.

The founders of this nation realized that the time would come when the citizens of the country would need to stand up to the organized military of the central government. Their intention was made clear in their writings in support of the new Republic.

Brent Greer said...

Well said!!!