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I said something like, “If the Second Amendment was repealed, it would not affect my rights.”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”
“It says it right there, the right to keep and bear arms”
“Yes, it does. But the Second Amendment gives us no rights.”
“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.”
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.