ADA — The Second Amendment of the U.S. Constitution does not say Americans have the rights to own firearms, rather it says the states can arm residents for the purpose of keeping a well trained and armed militia. This was the message of Dr. Paul Finkelman’s lecture on the origins and purpose of the Second Amendment Thursday at the Celebrezze Moot Courtroon at Ohio Northern University College of Law.
Finkelman is president of Gratz College in Melrose, Pennsylvania, and was a fellow in law and humanities at Harvard Law School. He grew up in upstate New York and isn’t against hunting or firearms, he said.
“The Second Amendment is about the militia. It’s about protecting the right of the states to have their own state militias if they feel they need it. It is not about the private ownership of firearms,”he said. “It is linguistically and historically based on the fear of some people that the government would overthrow the states or the national government would become a dictatorship.”
The Second Amendment states; “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.”
Finkelman said even though Article 1, Section 8 of the Constitution guarantees the national government would arm state militias, the Second Amendment was James Madison’s way of telling the states if the government couldn’t arm them for some reason they had the right to arm themselves. This was done to alleviate the fears of some who were afraid the infant American government would become a dictatorship and turn on the states, he said.
“The Second Amendment is the only amendment with a preface,” Finkelman said.
The wording is such the first half of the statement is giving a justification to the second half, he said. This makes the amendment clear in its purpose. People have a right to keep and bear arms because the states have the right to arm and maintain militias to use when their liberty is threatened, he said.
This understanding of the Second Amendment was maintained by the United States Supreme Court each time the issues was brought before them until 2008 with the Heller opinion and Justice Antonin Scalia, Finkelman said.
“They threw out 200 years of jurisprudence with that decision,” he said. “It makes no sense to think about this kind of analysis.”
Finkelman said Scalia’s decision matched the demands of Pennsylvania anti-federalists. During the ratification process they wanted an amendment added to the constitution giving people the right to own guns and never have that right infringed on even if they broke the law, he said.
“The easiest example of the misrepresentation of the amendment has been the classic position of the National Rifle Association,” Finkelman said. “Which used to have on the outside of its building, and it may still have, it said ‘the right of the people to keep and bear arms shall not be infringed,’ cutting off the first half of the amendment. Now we all know, everybody knows, if you take a quotation and cut out half if it, you’re doing it because you don’t like what the first half says.”
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