Unfortunately, this question is constitutionally flawed because 3 words have been incorrectly joined together. Those words are: "Second Amendment rights." By incorporating the words "Second Amendment rights" into the question, the Supreme Court has completely altered the intent and scope of the Second Amendment. Thus, the Court will decide the case on a fictitious amendment created by the federal judiciary.
This constitutionally defective question has the potential to be extremely dangerous for the future of the individual right to keep and bear arms because it opens the door for the Court to answer the question in the negative. Why? Because there is no such thing as a "Second Amendment right" to keep and bear arms. There is a right to keep and bear arms that exists independent of the Second Amendment. The sole purpose of the Second Amendment was to place an additional restraint on the powers of the federal government concerning the right to keep and bear arms.
The original intent of the Second Amendment can be found in the preamble to the Bill of Rights. The preamble states the sole purpose of the Amendments was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being recommended. The Amendments, when adopted, placed additional restraints on the powers of the federal government.
The American people should never lose sight of the fact that a document that restrains the powers of the federal government cannot be the source of their individual rights.
Based on the wording of the preamble, the Bill of Rights placed "constitutional prohibitions" on the powers of the federal government to prevent that government from "misconstruing or abusing its powers" concerning the rights enumerated in the Amendments. Thus, it is constitutionally impossible for the American people to have a "Second Amendment right" to keep and bear arms. There can only be a "Second Amendment restraint" on the powers of government concerning the right to keep and bear arms.
If the Supreme Court had based its order on the original intent of the Bill of Rights, the correct question in this case would read something like this:
Since the sole purpose of the Second Amendment was to place a constitutional restraint on the powers of the federal government concerning the right to keep and bear arms, the federal government must be referenced in any Second Amendment question that does not involve the States. The question of whether the Second Amendment restraint applies to the States via the Fourteenth Amendment is not at issue in this case because the District of Columbia is not a State.
If the sole purpose of the Second Amendment, as stated in the preamble to the Bill of Rights, was to place a constitutional restraint on the powers of the federal government, then why should the federal government be referenced in a case that involves a gun ban in the District of Columbia? The answer can be found in the body of the Constitution.
Pursuant to Article I, Section 8, Clause 17, the District of Columbia is under the exclusive control of Congress. This Clause states, in part:
The Constitution vests Congress with "exclusive" legislative jurisdiction over the District of Columbia. In essence, the D.C. government is a puppet government because it is under the exclusive control of Congress and derives its power to legislate directly from Congress. If the D.C. government violates the Constitution, it's akin to Congress violating the Constitution. Thus, the constitutional restraint imposed on the powers of the federal government by the Second Amendment can be applied to the District of Columbia via this Clause.
Words have meaning, especially when questions of law are involved. A prominent attorney told me many years ago that if a court is asked the wrong question, it will give the right answer to the wrong question. That being said, the Second Amendment question in this case has me perplexed. Why would the Supreme Court ask itself the wrong constitutional question? Why did the Supreme Court craft a constitutional question that totally misrepresents the original intent and scope of the Second Amendment? It is highly unlikely that the Supreme Court's order is a typographical error or the Court is constitutionally challenged concerning the original intent of the Bill of Rights. The only other possibility is the Court intentionally misconstrued the original intent of the Second Amendment.
While this might seem far-fetched, it cannot be ruled outside the realm of possibility. An armed citizenry is the ultimate check on government. In his Commentaries on the Constitution, Supreme Court Justice Joseph Story said this about the Second Amendment:
We may never know why the Supreme Court composed a constitutional question that misrepresents the original intent and scope of the Second Amendment but one thing is certain in my mind; government at all levels wants the American people to believe their individual rights originate from, and dependent upon, the Bill of Rights. Why? Because it puts in place a 3-step process that circumvents the original intent of the Bill of Rights and empowers government. First, it creates the belief that government was empowered to "protect" the rights. Second, if government has the power to "protect" these rights, then it must have been granted the power to define the extent of the rights. Third, if government has the power to define the extent of these rights, then it must have been granted the power to place "reasonable restraints" on the exercise of the rights. [EN-2]
Terms like "Second Amendment rights" make this 3-step process possible because it transforms the Bill of Rights from a denial of power into a grant of power. Since the ultimate goal of government is to acquire more power, this might be the underlying reason why the Supreme Court composed a Second Amendment question that is constitutionally flawed.
EN-1. Joseph Story was an Associate Justice of the United States Supreme Court from 1811 to 1845.
does government get the power to place a "reasonable restraint"
on a right enumerated in the Bill of Rights when the Amendments were specifically
written and adopted to restrain the government's power concerning the
right? If government has this power, then the Amendments are meaningless
because government can use the power to modify or negate the restraint.
Some other, related reading:
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of Rights Does Not Grant You Any Constitutional Rights"
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Greenslade focuses his writing on issues surrounding the federal government
and the Constitution. He believes politicians at the federal level, through
ignorance or design, are systematically dismantling the Constitution in
an effort to expand their power and consolidate control over the American
people. He has dedicated himself to resurrecting the true intent of the
Constitution in the hope that the information will contribute, in some
small way, to restoring the system of limited government established by
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob
Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.
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