The 2nd amendment does NOT say, "except by due process of law" or "except for felons". Why not? (Congress, legal)
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Why was the 2nd is written without qualifications? It says "Since X is so, the people's RKBA cannot be taken away or restricted." It does NOT say "except by due process of law". And it does NOT say "unless the person is a felon or other type of extreme criminal", and etc.
To make up an extreme example: Some guy goes into a restaurant, pulls out a gun and blows away half a dozen people. The cops show up and surround him, and one cop says, "Give me your gun right now." The guy says, "Sorry, the 2nd amendment says my right to KBA cannot be taken away or restricted, PERIOD, so you have no authority to make me give you my gun." And this with gunsmoke in the air and bodies bleeding on the floor next to him.
So what does the cop do? Cracks him over the head with a billy club and takes his gun away anyway.
Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't legally take away the gun of a murderer at the scene of his crime.
Many people use this as the reason why the 2nd amendment MUST have been intended to implicitly allow for exceptions: It's impossible that the Framers could have intended for murderers to retain their weapons immediately after committing their murders. Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.
So what could the Framers' intention have been, in omitting any exceptions?
Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical. And the Framers knew that if government were given even the tiniest exception, there would be a tendency to turn that tiny loophole into more and more twisted, warped excuses to take guns away anyway, far beyond the "reasonable" exception of being able to take away a mass-murderer's gun at the scene of his crime.
The only way the Framers could find of avoiding the far-greater evil of a tyrannical government disarming its people, was to make NO EXCEPTIONS WHATSOEVER to an explicit ban on government disarming even one of us.
So where does that leave us on the question of the cops taking the mass murderer's gun at the restaurant?
It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.
But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general. Because the slightest excuse, the tiniest exception, could be stretched into a huge loophole. And the Framers regarded a government that could somehow finagle its way into disarming its own people, as a far greater threat than the occasional murderous nutcase in a restaurant.
And history has proven the Framers right, time and again.
Should we amend the Constitution, changing the 2nd amendment to officially empower government to take away the right of, say, murderers, to own and carry guns?
Some would think it's obvious that we should, to make the law "really" right. But consider the potential cost.
My own guess is, the Framers intended for the principle of Jury Nullification to apply here. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull with his billy club, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Maybe yes. But is there a judge or jury in the world that will convict the cop for it? Probably not.
And yet when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.
I suspect that's how the Framers expected this particular law to work.
Can I prove it? No. When i meet one of the Framers, I'll ask him. Until that time, I can only guess, based on the records they have left behind. If anyone can come up with a better guess, I'd be happy to hear it.
I never said the cops shouldn't take the murderer's gun away. The murderer said that, with bodies still bleeding around him. Whereupon the cop whacked him over the head with a billy club and took it from him anyway.
And later when the murderer brought charges against the cop for violating his 2nd amendment rights, the jury let the cop walk. The cop had no more worries since double jepoardy isn't allowed. And the murderer went to the chair as he deserved. And that's exactly how the system should work.
And when some govt official tried to take the gun of a law-abiding citizen, the jury did NOT let the govt official walk, but threw him into jail with all those nice criminals, where they could discuss obeying the Constitution, and the advantages of jury nullification, all they wanted. And, again, that's exactly how the system should work. And was designed to work, in fact, by those founders the leftist fanatics keep desperately denigrating and insulting.
Yes, the right guaranteed by the 2nd amendment, IS absolute... because of the many horrifying examples that happen when it isn't. And imperfect as we are, the closer we come to making it that way, the safer and more prosperous (and, BTW, the freer) our society will be.
I do believe that individual rights are mostly null and void once you have been through "due process" - ie, trial and conviction.
On the other hand, it does say "cruel and unusual punishment" is forbidden. Oddly enough, the federal government is forbidden to punish people under any other circumstances - it's specifically forbidden.
Bills of attainder are forbidden. Public (official) punishment is simply forbidden, period. You can only be guilty and deprived of rights by a trial in front of a jury of your peers.
My own guess is, the Framers intended for the principle of Jury Nullification to apply here. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull with his billy club, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Maybe yes. But is there a judge or jury in the world that will convict the cop for it? Probably not.
And yet when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.
Could this be the reason why the 2nd amendment was written with NO exceptions or "reasonable restrictions" in its text?
That's because the second amendment wasn't about protecting gun ownership. It was about militia armies and the federal government not having the power to disband them.
Also there are other portions that say, if you're a felon, you lose lots of rights
That's because the second amendment wasn't about protecting gun ownership. It was about militia armies and the federal government not having the power to disband them.
It was, exactly, about protecting the right of ordinary people to own and carry guns and other such weapons; and ALL governments not haing any authority to restrict or take that right away.
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Also there are other portions that say, if you're a felon, you lose lots of rights
federal law allows for the suspension of a person rights WHEN they have been convicted of a crime, or adjudicated to be mentally defective. including the right to vote and the right to keep and bear arms. once a person has finished their sentence, they have the right under federal law to apply to get their rights back including the right to keep and bear arms. its a process allowed by the constitution, and by law. and this goes back to the feudal times in britain. back then law abding citizens had the right and the responsibility to bring outlaws to justice, and the reason they were called outlaws is because they operated outside the laws, same thing here, a criminal is an outlaw who operates outside the laws. do you really want someone like that being allowed to own a firearm? or how about someone that has mental issues, do you want them to own a firearm?
The Constitution is a framework that doesn't say a lot of things or provide specifics but gives Congress wide discretion to fill-in-the gaps through laws. Period.
Not all that wide.
Congress can "fill in the gaps" with laws ONLY in the areas where authority is specifically assigned to the Fed govt by the Constitution.
If a power of government is not mentioned in the Constitution as being a Federal power, the Fed govt is forbidden to make laws for it.
The Founding Fathers were very smart. They knew what men were capable of as politicians and ensured certain things couldnt be altered.
The felons issue is just a smart addition to anything. Felons should be stripped of many things, like ownership of weapons and the ability to vote.
Why was the 2nd is written without qualifications? It says "Since X is so, the people's RKBA cannot be taken away or restricted." It does NOT say "except by due process of law". And it does NOT say "unless the person is a felon or other type of extreme criminal", and etc.
Yes, the right guaranteed by the 2nd amendment, IS absolute... because of the many horrifying examples that happen when it isn't. And imperfect as we are, the closer we come to making it that way, the safer and more prosperous (and, BTW, the freer) our society will be.
The Constitution was intended to be an ambiguous document that could be modified through lawsuits and amendments as the years went on and situations changed. My reading of the Second is that you have the right to keep and bear arms as a member of a "well-regulated militia". The current SCOTUS has interpreted this as the rights of individuals as private citizens.
We are still dealing with a living, breathing document that is open to further interpretation and changes. It is complete willful ignorance to claim to know anything of the Constitution and think that there is anything in it that is absolute and writ in stone.
Why do people do this? This has all been covered over and over and I know that the OP has read the replies. But yet they feel some pressing need to claim ignorance of the subject.
Just because the 2nd doesn't cover due process specifically, the Constitution does in the 5th and 14th amendment. Some people really should read it beyond the 2nd.
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