The Positively Wrong Second Amendment on

December 27th, 2012

Here is how the White House describes the Amendments in the Bill of Rights. Which one of these is not like the other:

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances. The Second Amendment gives citizens the right to bear arms. The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution. The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause. The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice, and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation. The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be informed of the crimes with which they are charged, and to confront the witnesses brought by the government. The amendment also provides the accused the right to compel testimony from witnesses, and to legal representation. The Seventh Amendment provides that civil cases also be tried by jury. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated. The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the states, to either the states or to the people.

The Second Amendment most certainly does not “give citizens the right to bear arms.” There is no conferral of rights. Such a description is positively wrong in the descriptive, and normative sense.

Rather, as its text says (and yes, I’ll quote both the prefatory and operative clause), “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.” The Second Amendment prevents the right to keep and bear arms from being infringed. Whatever that right is does not matter for this discussion. What is important is where that right comes from–and it isn’t from the Constitution. The Heller Court wrote:

Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of theSecond Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v.Cruikshank92 U. S. 542553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”

Even if you don’t like Heller, the text of the Amendment itself grants no rights. Like the First and Fourth Amendments, it places a limit on what the government can do. Whoever wrote the remainder of these descriptions certainly understands the nature of negative liberty. The description of the First Amendment says “Congress shall make no law.” The description of the Third Amendment says “prohibits the government.” The description of the Fourth Amendment say s”government may not conduct.” Hell, it even gets the 9th Amendment right (more or less). But the Second Amendment, regardless of how you define the right to keep and bear arms, did not confer any rights. Maybe someone should start a petition to get this corrected. That seems to be en vogue today.