1st and 2nd Amendments: Apples and Oranges?


fifteen round mag

The device of only using those words, statements, facts, references, citations (and in Constitutional debates, “clauses”) which support your position in a debate is as old as those hills over there, and of course not at all underhanded, as there are a lot of facts, figures and words out there, and your purpose, after all, is to win. At least it should be.

But there is also the trick of introducing citations which have nothing to do with the question at hand in supposed support of your position. That trick is employed cleverly and repeatedly by the lawyer class and the elite political class as they continue to tell us little people what we can and cannot do, what we can and cannot possess and what we can and cannot say.

So while we empathized a little bit with Jazz Shaw over at Hot Air as he seemed distressed that the esteemed legal eagle Eugene Volokh had made a grand case that it is probably constitutional for the government to place a limit on the ammunition capacity of magazines attached to firearms, we wish Jazz had thought about it a little more.

The first argument attributed to Volokh was the classic liberal one that there may be such a thing as a “reasonable” , “minor” limitation on the Right to Keep and Bear Arms. He goes into a bit too much anecdotality and what-if-ism, saying that, for example, statistics show that only a few rounds are fired in self-defense in the vast majority of cases, so that right to self-defense wouldn’t be impeded all that much.

“A large part of the court’s rationale was that “a prohibition on possession of magazines having a capacity to accept more than ten rounds applies only the most minor burden on the Second Amendment,” and I think that’s both correct and legally relevant.”

Obviously, the counter to that is that there is no qualifier in the 2nd Amendment about reasonableness, and Shaw should have been able to find some comfort and refuge in the “shall not be infringed” conclusion of the 2nd Amendment.

But Volokh also saw fit to seemingly buttress his case by stating that imposing a “minor” or “reasonable” limitation on Amendment Two should be considered in view of the fact that First Amendment rights are routinely “reasonably” regulated by governments and gave the example of how an act limiting the “volume” of music is almost universally accepted as constitutional, because the “speech” contained is not prohibited, only the undue amplification of it.

volume control

“For instance, the government may limit the volume of music or constrain sound amplification generally, even though that would necessarily diminish to some extent the potential audience for such music or political advocacy.”

What is the difference between high- capacity magazines and high-volume amplifiers? Apples and oranges, you might say. You could play word games and associate the two or disassociate the two at your convenience. But it is not the subject matter of the First and Second Amendments that is important, it is the wording of the First Amendment and the wording of the Second Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Yes, governments do impose restrictions on speech in various and sundry ways. But those governments are not the Congress of the United States. The Congress of the United States is prohibited from abridging speech, but state and local governments are not prohibited from doing so by the Constitution. Those are reserved powers.

(Hmmmmm. Wonder if a state could pass a law respecting the establishment of …..nah, won’t go there today.)

The 2nd Amendment does not contain the phrase “Congress shall make no law infringing the right to keep and bear arms”, and by it’s silence grant the states the power to do so, to allow the usage of 22LR. That’s not how it works. The 2nd Amendment gives no entity permission to impose even a “minor” or “reasonable” limitation on the right. “Shall not be infringed”, period.

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.

And so…..apples and oranges. If the arguers want to stipulate that Amendments are to be taken in context, then in honest debate, they have to put the “text” in “context”. Congress cannot do certain things. The Constitution says so. Literally. Congress may do, or is required to do, certain other things. The Constitution literally says as much. But the further context of debate over Constitutional precepts is not limited to Congress. There are these not at all minor details called DELEGATED AND RESERVED POWERS and ENUMERATED and NON-ENUMERATED RIGHTS which

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are expressed literally in the Constitution via two other very important Amendments tucked right there into the Bill of Rights with the First and the Second. They are the Ninth and the Tenth. IF A POWER IS NOT DELEGATED TO, OR IS PROHIBITED TO, THE FEDERAL GOVERNMENT AND IS PROHIBITED TO THE STATES, IT IS RETAINED BY THE PEOPLE. THAT POWER WOULD INCLUDE THE UNFETTERED POWER TO EXERCISE A RIGHT.

(We need to have more discussions about what the use of the word “delegated” means.)

This is why Volokh’s allusion to the fact that Pawtucket, Rhode Island may constitutionally limit the decibel level of the audio emanating from the Civic Auditorium during a Rolling Stones concert has diddly squat to do with ANY entity ingeniously or disingenuously attempting to impose even a “minor” infringement on the right of self-defense and the right to secure freedom. It simply isn’t germane. And whether rights in the Constitution are ‘individual’ or those of the several States, or of the people as an entirety, the question is whether any entity, and if so which, may deign to place restrictions on them.

Chin up, Jazz.

“————–for OURSELVES and our posterity——————“

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