Even in Tragedy, Support the 2nd Amendment

2ndamendment

Evil will rear its ugly head and use whatever device is available, whether it’s a gun, automobile, knife, or bomb. We seem to be unwilling, as a society, to admit that evil will occur regardless of the availability of firearms and we should have the right to defend ourselves from it. Removing the device does not remove the evil, but our ability to defend ourselves can minimize its effect on us.

Our Constitutional Right

Thomas Jefferson wrote in the Declaration of Independence that all men are created equal, endowed by their Creator with certain unalienable rights…and that to secure these rights, governments were instituted among men. Government cannot take away these rights; it is responsible to secure them. The Preamble to the United States Constitution reads:

“We, the people of the United States in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Outlined in that timeless document is the Bill of Rights—the first ten amendments. There you will find the 2nd Amendment—“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.”

Clear & Settled

It seems pretty clear, doesn’t it? “…the right of the people to keep and bear arms shall not be infringed.” Though the language is clear as to the meaning of that clause it continually is debated in Congress, our state legislatures, and city councils all over America whenever an incident involves a gun. Our twenty-four hour news cycles will see to it that the necessary hysteria is created, which demands swift and sweeping action on “easy access to guns.”

The argument will be made that we need to place more restrictions on firearms possession to keep us safe. This argument should be viewed with caution, if not outright hostility. It’s not about safety, it’s about restricting individual rights. The arguments that will be made will try to indict all gun owners, based on “evidence” that would not convict anyone in an American court of law. It wouldn’t even result in an indictment. Attempting to apply further gun control measures on our collective society simply violates due process and is unconstitutional.

Presumption of Innocence, Due Process, & Irrelevant Arguments

Why do I say that? The explanation is simple. Before someone can be brought into a court of law and accused or convicted of a crime, resulting in the loss of their liberty, the accuser must have evidence that a crime was committed. Our system of justice doesn’t allow a charge or a conviction without evidence. Simply opining that someone belongs in jail is not sufficient.

If credible evidence is provided, the legal system presumes the accused is innocent. It is the accuser bears the burden of showing guilt. The justice system in America requires that guilt is never presumed, it must be proven.

Since the accuser has the burden of proof, meeting that burden to establish guilt requires meeting two more burdens: 1) the burden of production and 2) the burden of persuasion. The burden of production requires that some evidence be put forward by the accuser that suggests that there is a factual basis to proceed with charges. The burden of persuasion requires that the evidence that is put forward prove guilt beyond a reasonable doubt. Only then, according to our Constitution, can our system of justice proceed with any discussion of forfeited rights, like loss of liberty or other measures–like the loss of 2nd Amendment rights. This foundational legal truth is learned in the first year of most law schools. To briefly summarize:

  • Evidence must exist that is sufficient to accuse someone of a crime
  • We presume the accused is innocent
  • The accuser must meet the burden of proof
  • The evidence provided must establish guilt beyond a reasonable doubt

But we cannot just introduce any evidence. Evidence, too, must meet certain criteria before it is considered admissible in court. Admissible evidence falls into the following categories:

  • Direct evidence (ex. eyewitness testimony)
  • Circumstantial evidence (ex. a fingerprint at a crime scene)
  • Testimonial evidence (ex. oral testimony given under oath)
  • Real evidence (ex. physical evidence like possession of the murder weapon or other physical evidence connecting someone to a crime)
  • Scientific evidence (ex. forensic evidence like DNA)

The above is the only type of evidence allowed. We call this wonderful legal practice “due process.” No United States citizen can be deprived of “‘life’ (capital punishment), ‘liberty’ (imprisoned or suspension of rights), or ‘property'” (fines or forfeiture) without there first being an accusation, legitimate admissible evidence to support it, and it persuades an impartial audience (judge or jury) of guilt.

Gun control efforts—whether those efforts seek to regulate gun or ammunition purchases, outlaw guns that are presently lawfully owned, or severely restrict firearm possession—are not based on due process. Consider any gun-related tragedy. Each incident has inspired a number of efforts to place ever more restrictions on law-abiding gun owners, gun owners–mind you–who were never involved in the tragedy. Why? Guilt by association?

Let’s just be honest. The gun control lobby in America rests its case largely on what the court system calls subjective or irrelevant testimony. Thus, gun legislation that seeks to restrict your 2nd Amendment right is based on “evidence” that would not be allowed in open court. Imagine this scenario:

“Your, Honor, this man should be prohibited from owning a semi-automatic handgun with a high capacity magazine.”

“Why?”

“Well, sir, a similar handgun was used in a mass-shooting recently at a shopping mall.”

“Was this man the shooter?”

“No, your Honor.”

“What is the legal ground to take away this man’s handgun?”

“It’s similar to the one used in the mass-shooting.”

“How is that relevant to this man’s handgun?”

“Well, your Honor, we believe that owning the same kind of handgun increases the likelihood that this man will commit the same kind of crime.”

“What is the evidence to support this?”

“We feel that possessing a handgun with a high capacity magazine increases the likelihood this man will commit the same type of crime.”

The foundation of this argument–and ridiculous circular reasoning–is based on irrelevant and subjective testimony. The law-abiding gun owner is presumed guilty in this argument based on the actions of someone else (irrelevant) and the opinion (subjective) of the accuser. The accused in this scenario (the lawful gun owner) is denied his presumption of innocence, required by our criminal justice system, and an attempt is made to deprive him of his right to bear arms based on inadmissible “evidence.” There is simply no legal basis for establishing guilt and no justification to take away his 2nd Amendment rights.

The Illegitimacy of Gun Control Efforts

You can see the ridiculousness of the argument of the gun-control advocates. A little simple logic will illustrate the absurdity of it. Premise #1 states: John Doe is an insane killer. Premise #2 states: John Doe is a human being. Conclusion: All human beings are insane killers. The conclusion does not logically follow the premise here and it should not follow when applied to law-abiding gun owners.

We don’t take away driving privileges from all drivers because some of them drive drunk and kill people. We don’t deny 1st Amendment rights to all reporters because one reporter libeled someone else. Society would not tolerate it. It should not tolerate it when it’s applied to lawful gun owners, either.

Gun control advocates, however, are not deterred by this. Instead, they try and make an end run around the court system. It’s clever, really. They use the legislative process to introduce their “evidence,” evidence which would never be allowed in open court, to pressure legislators to enact restrictive gun control laws targeting law-abiding citizens as a group. This method, however legitimate it may appear, still denies individuals their presumption of innocence and circumvents due process of law.

There is no legitimacy to a process that seeks to use the legislature to deny a citizen a right he would never lose in court. However, in the arena of politics you do not need to present evidence that meets the “burden of production.” You do not need any evidence to meet the “burden of persuasion” or “burden of proof.” Heck, you do not even need to overcome reasonable doubt. You simply need to convince individual legislators that they can determine an individual’s guilt on the basis of behavior committed by someone else or the subjective opinion of what someone thinks they might do. Shame on our elected officials who fall for it.

We must fiercely be on guard to prevent these gross violations of our rights, especially in the face of tragedy. The 2nd Amendment to the United States Constitution states the right to keep and bear arms “shall not be infringed.” The 5th Amendment states that no person shall be “deprived of life, liberty, or property without due process of law…” To deny a citizen’s right to keep and bear arms–even through the seemingly legitimate legislative process–is to deny them liberty. We should not surrender our rights—any rights—as citizens because someone else abused theirs.

Advertisements

2 thoughts on “Even in Tragedy, Support the 2nd Amendment

  1. “It seems pretty clear, doesn’t it? “…the right of the people to keep and bear arms shall not be infringed.””

    Yes, it’s been settled for 250 years. The Second Amendment was NEVER an absolute right. The founding fathers never saw it that way. And the supreme court has supported registration and backgroudn checks for almost a century.

    Anyone who thinks the second amendment is an absolute right doesn’t know the law or the history of their own country

    https://phocionossipublius.wordpress.com/#129

    [129] . Militia Acts (1792)
    [130] . Required every man from 18 to 45 to register with the militia and to own a musket with a specific bore diameter. This is the first law that acknowledged that the second amendment was not an absolute right, that it does not promise citizens a right to anonymity with regard to owning guns. Four years after ratifying the Constitution, one year after ratifying the Second Amendment, the founding fathers pass a law that requires every man with a gun to be registered with the government, as a direct extension of the Second Amendment intent of maintaining a militia to be ready to defend the government.

    [139] . National Firearms Act (NFA) (1934)
    [140] . Passed in response to St Valentine’s Day Massacre that killed 9 people with machine guns. Prior to 1934, you could walk into a hardware store and buy a machine gun like it was a hammer. And the only reason you can’t walk into a hardware store today and buy a machine gun like you would buy a hammer is the National Firearms Act of 1934. The NFA regulates automatic weapons, sawed off rifles and shotguns, weapons over 50 caliber (with an exception made for shotguns with a legitimate hunting purpose), explosive weapons, poison gases, and silencers. NFA weapons such as machine guns are legal for civilians to own, however anyone buying an NFA weapon must submit fingerprints and a photograph and undergo a background check. Buyers pay a $200 tax per purchase. NFA item must be registered with government. Sales must be done through a dealer. Private sales are not allowed.

    [148] . US v Miller (1939)
    [149] . Supreme Court unanimously upholds the National Firearms Act. In the decades to come, US v. Miller will be cited by numerous court cases.

    [162] . Parker v. D.C. (2007)
    [165] . The D.C. court stated: “Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up. Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service. Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia.”

    Like

    1. Well, you skew the context a bit and leave out an awful lot of history and opinion. I hope to get back to it in a few days with a response (I’m on vacation). Stare decisis should never be the end-all-be-all of a legal argument, especially if it’s wrong. Thanks for taking the time to read it and respond.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s