Is the Second Amendment Absolute?
In a recent speech where he said that Congress should reinstate the assault weapons ban, raise the minimum purchase age for firearms, limit magazine capacities, and pass red flag gun laws, President Biden made the statement that “the Second Amendment, like all other rights, is not absolute.” This echoes what he had previously said after the mass shooting at a Texas elementary school: “The Second Amendment is not absolute. When it was passed you couldn’t own a cannon, you couldn’t own certain kinds of weapons. There’s just always been limitations.”
This should have come as no surprise, since Biden said last year that “no amendment to the constitution is absolute.” This flawed idea about the Second Amendment was repeated by an assortment of Democratic politicians, even as they denied that they were coming for Americans’ guns. Some progressives, echoing the late Supreme Court Justice John Paul Stevens, have even called for the repeal of the Second Amendment. Is the Second Amendment absolute? Does it have any exceptions? Could the Second Amendment be repealed? What would happen if it were?
The Second Amendment reads: “A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” I don’t see how it could be any more absolute. The only exceptions have been invented by judges and legislators.
The Second Amendment does not grant to any American the positive right to keep and bear arms. It recognizes a preexisting natural right. The Second Amendment is an additional limitation on federal power to infringe upon gun rights besides the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon them in the first place.
This means that from a constitutional perspective, the federal government has no authority to ban or regulate handguns, shotguns, sawed-off shotguns, rifles, assault rifles, extended-capacity magazines, high caliber guns and ammunition, automatic weapons, bump stocks, or bazookas. And neither does the federal government have the constitutional authority to establish or mandate gun bans, gun-free zones, background checks, waiting periods, limits on gun purchases, licensing of gun dealers, gun-owner databases, gun licensing, trigger locks, rules for gun sales or transfers, gun registration, age restrictions, gun storage requirements, or concealed weapons laws.
This means that all federal gun laws are illegitimate and should be repealed, and that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the National Instant Criminal Background Check System (NICS) should be abolished. There were no federal gun-control laws until the 1930s: the National Firearms Act in 1934 and the Federal Firearms Act in 1938. If there are to be gun-control laws, they must exist only on the state level.
Even so, there is more of a constitutional right to own a gun than to have an abortion. Yet, liberals and progressives deny the former and insist on the latter. Comedian turned political commentator Dean Obeidallah recently said on Twitter: There is NO constitutional right to own a gun. That was literally made up by 5 GOP Justices in 2008 decision of DC v Heller. We need to make overturning Heller a cause like the right made overturning Roe v Wade. Reminder: Between 1789 and 2008 NO federal court found 2nd Amendment created a PERSONAL constitutional right apart from being in a militia to own a gun. In 2008, five supreme court justices INVENTED that in DC v. Heller. We must OVERTURN Heller so we can pass gun safety laws!
It is true that the Supreme Court ruled in the Heller decision that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home,” but as every child learns in school, the judicial branch is not the legislative branch; it doesn’t make the law, it interprets the law.
But what if most Republicans in and out of Congress support most federal gun-control laws? This just means that they are enemies of the Constitution they claim to cherish. But what if the Supreme Court has declared that existing federal gun laws are constitutional? This just means that they are ignorant of the Constitution they claim to judge all laws by.
But what if the Second Amendment only applied to the states’ ability to maintain militias? Then it wouldn’t affect Americans’ right to keep and bear arms at all. It would just be an amendment concerning state militias.
But what if the Second Amendment only protected the right to keep and bear arms in an organized militia? It wouldn’t change the natural and moral right of all men to arm themselves. It would just be an amendment to protect the right to keep and bear arms in an organized militia.
But what if the Second Amendment were repealed? That is certainly a possibility. The Twenty-first Amendment of 1933 repealed the Eighteenth Amendment of 1920 that instituted Prohibition. But because no authority has been granted to the national government by the Constitution to infringe upon gun rights or have anything to do with guns, if the Second Amendment didn’t exist, Americans would still have the natural right to keep and bear arms.
The Second Amendment is absolute and therefore has no exceptions. And it is absolute in spite of the many attempts by politicians and judges—both Democrat and Republican—to infringe upon Americans’ natural right to keep and bear arms.
Laurence M. Vance [send him mail] writes from central Florida. He is the author of The War on Drugs Is a War on Freedom; War, Christianity, and the State: Essays on the Follies of Christian Militarism; War, Empire, and the Military: Essays on the Follies of War and U.S. Foreign Policy; King James, His Bible, and Its Translators, and many other books. His newest books are Free Trade or Protectionism? and The Free Society.
This article first appeared at https://www.lewrockwell.com/2022/06/laurence-m-vance/is-the-second-amendment-absolute/?fbclid=IwAR38S7-i-FuKca73b_9Mz7Z2sdpA11SAjh_fEEKNwt-wMcfLFPwJfBIjZqY It is used here under a Creative Commons license. The heavy machine gun photo is an addition from the Florida Tenther. No endorsement of this photo by the author or LewRockwell.com is inferred or implied.