Re: the 2nd amendment- why 2nd?
- There is no hierarchy of rights in the Bill of Rights. The order in which the rights are numbered is of no legal consequence. (I think? What happens when two articles conflict with one another?)Originally Posted by Hooahguy
- Earlier drafts of the Bill of Rights show a different order.
- I do believe there is a certain order of importance of amendments. The 1st re-affirms rights. The 2nd and 3rd regulate defense. The 3th through 8th regulate law enforcement. The 9th and 10th conclude with guarantees against abuse of the Bill of Rights by the government
- I disagree that the others are 'a bit more important'. The Second and Third Amendments are of supreme importance. They regulate the defense of the USA - always a first task of any government.
I am of the conviction that the Bill of Rights does not grant rights. Americans already posessed all the rights within it. De jure, as a self-evident truth, de facto, by securing them in revolution. They did not at any point surrender them to their government.
The Bill of Rights then, does not declare the rights of the citizens. It 'permits' nothing to the people. Kings permit their subjects certain rights. Not so in America.
The BoR is not even a document limiting the power of the federal government. The federal government has no power other than that which is explicitly granted to it. (As confirmed in the Bill of Rights itself) The BoR then, as part of the constitution, institutes government.
In the constitution, the people grant the government rights, not the other way round. Rights it receives because governments are instituted for the benefit of the people, to make possible the exersize of life, liberty, property (yes) and the pursuit of happiness.
One of the rights the government is granted, is that of defense. Why do the people grant it this right? Because it is necessary for the security of a free state. How is this right limited in the Bill of Rights? By limiting it to a well regulated militia. This is the historical meaning of the second amendment. It is also in line with similar articles in comparable articles in European republics, and with the article in previous drafts.
However, there is a problem with the BoR. Its authors were aware that the people are not given rights in it. Therefore, the articles do not follow a positive formula: 'the people have freedom of speech, the people have freedom or religion' etcetera. The people already posessed these rights. A govenment was merely instituted to enable the exersize of these rights. The BoR only sought to affirm that the instituted government does not infringe upon certain rights. The people are not told what rights they have, the government is told what rights it can't infringe upon. Instead of the formula 'the people may..', the articles follow the formula 'the government may not...'
Therefore, the articles are stated negatively: 'the government may not infringe upon freedom of speech'. So the second amendment does not grant a right to bear arms. No more than the fifth grants the right of property. The second (and the corresponding third) amendment merely limits the government in the ways in which it can exersize its task of organising defense. Specifically, it limits the government to only institute public military forces, a civilian militia. Instead of abusing the powers vested in it for its own gain.
(See, for example, a previous draft:
'The rights of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of the free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person'.
Or, the equivalent article from another BoR in Europe:
'The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted'.)
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