As I was reading Justice Thomas’s wonderful Bruen opinion, I noticed the phrase “protected by the Second Amendment”. This is something he says throughout the opinion.
When I started looking for it, I found that when legal people were talking about the Second Amendment, they often (always?) said, “Protected by the Second Amendment” or “Second Amendment protected rights”. Over and over we see this language.
—Declaration of Independence: A Transcription, National Archives, (last visited Jul. 31, 2023)
Our rights are endowed upon us by our creator. They are not granted to us by the State. If the state can grant us a right, the state can remove that right. Almost all arguments about constitutionality revolves around the absolute values of those rights.
The left argues that my right to free speech ends when they are offended. They call it “hate speech”. The sheep and leftists argue that my right to self-defense ends when I might harm somebody else. Listen to the comments on any shooting, and there will be calls for the punishment of the victim because they “didn’t have to kill.” or they “didn’t have to injure” the attacker.
Can you cry “Fire!” in a crowded theater? ABSOLUTELY! You can even do it if there is no fire. You have an absolute right to do so. On the other hand, if your actions cause harm to others. Real harm, not just emotional duress, then you might be liable for those damages.
I.e., if you cry “Gun!” in a crowded theater, and it causes a panic among the people trying to escape and some are injured or killed, you will be held responsible for those injuries and deaths.
Why “absolute”? Because rights have no value if they are not absolute. I absolutely have the right to keep and bear arms. I don’t have the right to murder people with arms. This is the balancing of rights. Their right to live vs. my right to keep and bear arms.
The law works at balancing the rights of the people. They fail most of the time. I have a right to my property. He has a right to life. He loses that right when he attacks me to take my property. (Notice that it isn’t just propriety here, there is violence directed at me).
Which takes us back to blowing Mrs. AWA’s mind this morning.
I said something like, “If the Second Amendment was repealed, it would not affect my rights.” Her response was, “But those are your Second Amendment rights, they would be gone.”
“What rights does the Second Amendment give us?”
“The right to keep and bear arms.”
“Nope, try again.”
“Ahhh, the right to have guns and use them”
“Still wrong.”
“It says it right there, the right to keep and bear arms”
“Yes, it does. But the Second Amendment gives us no rights.”
“Umm”
“Read what it says, “the right of The People to keep and bear arms shall not be infringed”, this is protection for a preexisting right.”
“No. It says it right there.”
“Our rights come from our creator. We are endowed by them when we are created. The Second Amendment protects the right to keep and bear arms, or armed self-defense, which was endowed upon us by our creator.”
“Because it exists outside the government’s wishes and control, they cannot remove it. They can remove the protections, but not the right.”
“Mind. Blown.”
Mrs. AWA was so conditioned to hear “Second Amendment rights” that she lost sight, if she ever had it, of the simple fact that our rights exist outside the Constitution.
Now go forth and remember, they are Second Amendment protected rights, not given rights.
I would add that the most published book in human history backs your proclamation.
“Second Amendment protected rights”
.
Technically, that statement is correct. The 2nd Amendment does protect our rights to keep and bear arms by restricting the power of the government to regulate/infringe on them.
.
Also, you are absolutely correct that the right does not go away if the government does infringe. Even without the 2nd, any human has a fundamental human right to self protection against threats, both personal and political. In order to execute that right, the use of arms is required.
.
I too am an absolutist. In my opinion, as long as I possess and use an item in a law abiding and responsible manner, there is no justification whatsoever for any infringement. Taking the absurdist approach (sometimes used by gun grabbers) I see no reason why I cannot possess and use nuclear bombs, under the condition I use them in a law abiding and responsible manner. And, no, I am not advocating for private ownership of weapons of mass destruction.
.
So, as you note with the 1st, it does not grant you the right to freedom of expression, that is a fundamental human right. What the 1st does is restrict the government from limiting your freedom of expression. And, as is misunderstood way too often from the Miller (or was it the Heller SCOTUS decision), rights are not absolute. In the paragraph above, I did use the phrase “law abiding and responsible” and when someone abuses one of their fundamental rights, whether it is speech, self defense, privacy, etc… and it causes harm to other individuals, then your “right” will be restricted. “You cannot yell FIRE in a crowded theater!” No, you absolutely can. But, what you cannot do is expect the 1st Amendment to defend you against prosecution for the chaos you knowingly and deliberately caused.
Agree with everything you say CBMTTek, and will comment that when the framers wrote the Bill of Rights, and they defined ‘rights’ as to what they are and what they are not, this argument began and was contextually based on “The People” i.e., US Citizenry as a whole, not as criminals, but as lawful citizens, good reasonable moral people. existing in the rights bestowed on them by the Creator.
.
Therefore, the personal status of “Law Abiding, and Responsible” is inherent within the foundational designation of “The People”. It is utterly insane to believe, and base any thoughts, on the idea that, ‘The People’ referred to and was comprised of in any way, non-law-abiding people.
.
Thus, in the SCOTUS ruling in Miller, the second amendment was determined to be a matter of the states (due process clause and 14th amendment) and not just the federal government as Heller made clear. So that if The People of any state deemed advantageous as a state, to make laws that proven insane people and violent felons could not lawfully own firearms, they could in fact do that and still be in agreement with the SCOTUS Ruling in Miller v Chicago.
Much better said than my comment…
For many who want to have their personal responsibilities removed for a safer easier life the State is the higher power. If that higher power says no it comes across as that right never existing or being revoked.
I admit to sometimes falling into the thought of “X says this so we can do Y” instead of a more accurate and historical reading more along your lines.
I am however protected by my early onset curmudgeon disorder so theres that.