Debate Magazine

Are Capitalism and Property Rights the Enemies of the Second Amendment?

Posted on the 12 September 2019 by Doggone
Are Capitalism and property rights the enemies of the Second Amendment? United States v. Cruikshank, 92 U.S. 542 (1875), doesn't really address the Second Amendment, but it does say this:
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
Short, but pithy.
The right is one of "bearing arms for a lawful purpose" and it only limits congress. Yet another example of how Heller and McDonald area break from the legal precedents set by the Court itself. McDonald truly being the outlier since it takes something which is specifically tied to Congress's power under Article I, Section 8, Clause 16 and "expands" it ultra vires to the States. Additionally, the rights mentioned in the various "Bills of Rights" out there only apply to governmental action.
Which is the reason I point to this case because the New York Times has a piece about how business leaders are calling on the government to regulate firearms. This comes on the heel of announcements by businesses that they will no longer tolerate open carry.
The movement has gained momentum since last month, when a shooting at a Walmart store in El Paso killed 22 people. A day later, nine people were shot and killed in Dayton, Ohio.
“Gun violence in America is not inevitable; it’s preventable,” the business leaders wrote. “We need our lawmakers to support common-sense gun laws that could prevent tragedies like these.”
Property owners have the right to control who enters their property and how they are supposed to do it. Additionally, they have a duty to make sure that people on their property are safe.
Mass shootings aren't safe.
Even more importantly, the nonsense about how armed individuals stop these shootings is being shown to be just that.
Cruikshank may seem cryptic at first blush, but it is highly important to understanding the Second Amendment. The right is similar to that given in the English Bill of Rights, to carry arms for a lawful purpose. Presser made it clear that the right was tied the active militia, what is now the National Guard.
Heller and McDonald were both ultra vires because they both went beyond the scope of Constitutional interpretation, but they have the advantage in that they were extremely limited in scope and subject to strict regulation.
One doesn't need to choose between two different schools of interpretation of the Second Amendment: one just has to admit that the right is "well-regulated".

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