IS THE SECOND AMENDMENT ABSOLUTE


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BY ADEYEMI OSHUNRINADE

The founder who gave the right to bear arms, reserved the right to take it away. The issue of whether the Second Amendment is absolute is a matter of judicial interpretation. If asked, the apologist and proponents of gun rights will say the right to bear arms as indicated in the Second Amendment, encompass the right to acquire all arms. But if this were to be true, it would have been legal for a private citizen to possess: a military tank, the FIM-92 stinger, a Bazooka or a Rocket Propelled Grenade. These are all arms in the military sense but not legal for private use.

To the advocates of gun control, the right to bear arms as stated by the creator meant only the right to bear specific kinds of arms for personal protection and does not include the right to bear all arms such as high-capacity magazine and assault weapons as the apologist believe. Or an argument can be raised that though, the Second Amendment conferred the right to bear arms, it did not say specifically what arms to own, which could mean the founders intentionally left that decision to the lawmakers.

Perhaps, it is wise to conclude that the Second Amendment is not absolute but instead, a matter left for judicial review by the founders based on the following grounds: The same one who wrote the Second Amendment, created a system of checks and balance with a three tier government made of the Legislature, Executive and the Judiciary with the duties to make, execute and interpret the law respectively. While the Second Amendment is a Federal law, each States of the United States has different laws as to gun ownership. If the Second Amendment was meant to be absolute, the language in the draft would have been explicit and not subject to both legislative and executive reviews, as we have in the current debate over gun control.

Today in the United States, every state has laws prohibiting a convicted felon from acquiring or possessing a firearm. This would have been impossible if the Second Amendment were to be left as is. To deny a convicted felon of the right to bear arm would have been a constitutional violation of his right. What the Second Amendment say is that all have the right to bear arm, it did not say a convicted felon should be denied of such right.

However, the legislature through its judicial branch has been able to interpret the Constitution thereby, making it possible to make laws that deny a convicted criminal of the right to possess a weapon. This is a testimony to the fact that the Second Amendment by itself is not absolute but may be interpreted to fit a particular purpose, such as through a law that prevents criminals from taking hold of firearms. Or better to say if the Amendment cannot be infringed on and total as the apologist say, it would’ve been possible for the feeble minded or one with mental infirmities, to acquire a firearm with no questions asked.

As a matter for judicial interpretation, the flexibility associated with the Second Amendment also makes it possible for one who has been denied of his right to bear arm to acquire it back in a special situation, without being proscribed for doing so. For example, if John a convicted felon is chased down the street by a gun toting Mark who intended to rob and kill him, stumbled on a gun lying in a street corner while running away from Mark, picked up the gun and open fire on Mark just as Mark was about to pull the trigger, killing Mark instantly. Will John be guilty of illegal possession of a firearm?

The answer is in the negative. Or should John wait for his assailant to fire first or pull the trigger to incapacitate his would be killer? In that particular moment, John faced a matter of life and death and though as a convicted felon, he may have lost his Second Amendment rights as determined by the legislature, he was able to acquire it back by taking possession of a gun he found in the street and using it for self defense. The privilege of illegal possession is only valid for that particular moment. If John is found with a gun minutes or days after the incident, he may be charged with illegal possession of a firearm by a felon. So if one believes that every American has the right to bear arms as dictated by the Second Amendment, it does not follow logically, legally and constitutionally that the right is absolute without limitation or some forms of censorship.

The point here is that the Second Amendment is not absolute as the apologist of gun rights is making it to be. It is a matter which the Founders have left for the three tiers of government to review and legislate on as they see proper, in the interest of American citizens. The Amendment as it stands does not say precisely what arms Americans can bear. Though it is clear on the right to bear arms, such expression must not be read to include the right to acquire all weapons, including those designed for our nation’s military. The Founders have left that determination to the three branches of government or else, the Second Amendment would’ve been left the way it is and the nation not thrown into a debate over gun control laws. If it were absolute, a discussion over use of Executive Order by the President on gun control would’ve been impossible. The founder would’ve expressively, stripped the executive office of such authority.

Dr. Adeyemi Oshunrinade [E. JD} is an expert in general law, foreign relations and the United Nation. He is the author of ‘SAVING LOVE,’ ‘Constitutional Law-First Amendment’ and ‘Wills Law and Contests’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.

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Categories: Constitutional Law, Gun Violence

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