The National Rifle Association has really missed the mark this time. In its recent efforts to lobby against the crime bill’s prohibition on various types of assault weapons, the NRA has failed to recognize that the measure perpetuates a far more devastating invasion of the Second Amendment’s right to bear arms: the crime bill that Congress passed continues to abridge the rights of incarcerated prisoners to have weapons of any kind with them in their cells.
At first glance, this might seem like a frivolous problem. Who in their right mind would believe that the Constitution gives prisoners the right to carry knives, pistols, rifles and assault weapons in their cells? But once we examine the NRA’s understanding of the Second Amendment it becomes clear that the right of prisoners to bear arms is indeed part of our system of cherished liberties, and anyone who would dare question this right is an enemy of freedom.
You see, as Senator Bob Smith of New Hampshire explained on the Senate floor, the Second Amendment is really quite straightforward. It provides that “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.” Smith’s exposition on the meaning of these words and the intent of the framers who adopted them, leaves no doubt about their full applicability to all citizens-including those who are imprisoned for violent crimes.
To begin with, Senator Smith explained, what he and the NRA deem to be the operative language of the Second Amendment is absolute: “the right of the people to keep and bear Arms, shall not be infringed.” The senator challenged those who would read exceptions into this broad edict. ” `Shall not be infringed.’ That is all it says. I do not know where we get in there that certain types of guns can be banned, waiting periods, all of these things. Where does that come from? How do you get that out of the Second Amendment?”
Surely, it was only the time pressures of the Senate that kept him from asking the next logical question: Where is the provision for keeping guns away from prisoners?
Recognizing that the words of the Constitution are not always easily interpreted, Sen. Smith then turned to the writings and speeches of the “founding fathers” in order to prove that the Second Amendment means just what he says it says.
John Adams, for example, wrote that “(a)rms in the hands of citizens may be used at individual discretion. . . in private self-defense.” Similarly, Richard Henry Lee declared that “to preserve liberty it is essential that the whole body of the people always possess arms and be taught alike. . . how to use them.” And James Madison explained that “the Constitution preserves the advantage of being armed which American possess over the people of almost every other nation. . . where the governments are afraid to trust the people with arms.”
As Smith asked, “Anything in there about gun control or registration or waiting periods or banning any particular type of weapon? Not that I can find.” And as he surely would have asked had there been just a bit more time: “Anything in there about an exception for those who are imprisoned? Not that I can find.”
Rather, as he put it: the meaning of these words is “all pretty clear to me. I am hearing the most unbelievably wild interpretations of what these men meant. You can tell what they meant because the Second Amendment is as clear and as concise as any amendment or any language in the Constitution of the United States. There is no doubt about what they meant.”
Indeed, more than the Second Amendment is at stake here. Surely it violates the Eight Amendment’s prohibition on “cruel and unusual punishment” to deprive prisoners of their natural right to possess assault weapons and other firearms. It is one thing to lock someone up, or even execute him, but making a man live without a gun is a kind of heinous punishment that the framers of our great Constitution would never have contemplated.
Back to the Second Amendment, though: The NRA must defend the Second Amendment against those who would read exceptions into it or would read it (as the courts consistently have) as relating only to the organized militia. They must begin to fight for the rights of prisoners, whose Second Amendment rights are being violated in dramatic fashion.
To again quote the good senator, the NRA must decide “whether or not it is appropriate to basically ignore the Second Amendment to the Constitution. And we are ignoring the Second Amendment to the Constitution. Not only are we ignoring it, we are stepping on it.”
Or perhaps its meaning is not so simple, after all. Perhaps the Second Amendment does not create an absolute right for everyone to own every kind of weapon imaginable. Perhaps the courts have correctly understood the amendment as applying to the organized militia, not to every individual who claims a constitutional right to hunt or defend himself against governmental authority.
To paraphrase Justice Robert Jackson: there is danger that if the NRA “does not temper its doctrinaire logic with a little practical wisdom, it will covert the constitutional Bill of Rights into a suicide pact.”
