@Nort,
If I may.
Why does this question have to be framed as an absolute, all or nothing, requiring Constitutional amendment? Something I can appreciate has virtually nil chance of occurring given today’s political climate in your country. Or maybe I am misunderstanding your point.
But certainly, putting reasonable restrictions on the type of weapons a citizen has a right to own (i.e., banning assault rifles, other weapons of war and the like), would not be an unreasonable infringement on the 2nd Amendment and on a citizens’ right to bear arms, would it?
After all there are existing restrictions to the 1st Amendment are there not, regarding free speech and those did not require to my knowledge any change to the constitution to be implemented.
I’m of course being facetious here, but taken to its admittedly absurd extreme, for a strict constructionist would not the 1st Amendment then theoretically allow a citizen to install a howitzer gun in their back yard or drive around with a Javelin in their car trunk?
Cheers!
I think you mis-typed the 1st Amendment in connection with installing a howitzer. The 1st Amendment protects freedom of expression (freedom of speech, freedom of religion, freedom of association, freedom of assembly, free press, etc.) I think you meant to refer to the 2nd Amendment, in your howitzer example, which addresses the right to possess a gun.
I feel I should preface my next comments with a disclosure that I am a Strict Constructionalist. So take my views with that grain of salt.
The 1st Amendment prohibits the Federal Congress from making any laws respecting an establishment of religion (so no favored national religion and no exclusion of any faith), or prohibiting the free exercise of religion. The Federal Congress cannot make any law abridging free speech, the press, the right to peacefully assemble, or to petition the Government for a redress of grievances. However, the Supreme Court of the United States (SCOTUS) has analyzed the scope of the 1st Amendment and determined that types of "speech" that fall within these expressly enumerated categories is "protected speech" which cannot be abridged. The SCOTUS has also held that if a type of speech falls outside the boundaries of any of these expressly protected classes of speech, then that speech is "unprotected speech." Examples of unprotected speech have been defined by the SCOTUS to include "obscenity," "fighting words," "inciting violence or a riot," "hate speech," "yelling Fire! in a crowded theater," etc. So the Federal Congress would be well within its prerogative to ban speech that falls outside the expressly enumerated categories. Most of the civil rights litigation, at least during my 30 years as a Constitutional lawyer (and I have appeared on behalf of clients on three occasions before the SCOTUS), focused almost entirely on whether the "speech" in question fell within one or more of the protected classes of speech. I cannot recall any litigation focusing on what the scope of the Federal Congress' power might be. In other words, if the speech was held to be protected, the Federal Congress could not control it. If, on the other hand, the speech was held to be unprotected, then the Federal Congress could stifle it. It is also worth noting, that there is nothing in the 1st Amendment that pertains to other public entities, such as states, counties, cities, towns or villages. Having said that, it is very common for each State Constitution to incorporate language that is very similar, if not identical, to that of the Federal Constitution. But there would be nothing the Federal Congress could do to stop a State from choosing to make laws respecting the establishment of religion or prohibiting free speech ... at least nothing in the 1st Amendment of the Federal Constitution. As for your reference to "existing restrictions to the 1st Amendment," I am guessing that you are referring to the SCOTUS' "rational basis test" and the implementation of "time, place and manner" restrictions on otherwise "protected speech." It is true that, if there is a rational basis for limiting otherwise protected speech, then that protected speech cannot be stifled, but the time, place and manner of how that protected speech is expressed can be controlled. A common example is protesters. If a group of individuals wish to voice unhappiness with a certain development (
i.e., protesting the U.S. involvement in the Vietnam War), those individuals cannot be censored based on the content of their speech. And if those individuals protest from a sidewalk, without hampering ingress and egress, their behavior is protected. However, when those individuals step off the curb and into the street in order to block traffic (
i.e., without first obtaining a permit to do so), their speech has arguably gone beyond just expressing their views. Now they are imposing their views, through behavior, on others. Those others have a 1st Amendment right to determine with whom they wish to assemble. In this example, it has been judicially adjudicated that the actions of the protesters (blocking traffic to drive home their point) have stepped outside of the realm of protected speech and into the realm of unprotected speech. That is why "time, place and manner restrictions" are a thing. All of that is to say that existing restrictions to free speech are deemed to be already in the fabric of the 1st Amendment, and no further Amendment is required.
Turing to the 2nd Amendment, I ... as a Strict Constructionalist ... have a problem with how the SCOTUS has interpreted the language of that Amendment.
The text of the 2nd Amendment reads in full: "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." Obviously, that language was drafted at a time when the relationship between the British Crown and the American Colonists was what it was. Having said that, what I see when I read that language is that if I am a member of a regulated militia, and that militia was formed to protect the state from either a foreign invasion or internal insurrection, then ... and only then ... the Federal Congress cannot take my gun. Hey, I said I was a Strict Constructionalist. It is my belief that if there is to be a change in that law, then a Constitutional Amendment is required. Clearly, the SCOTUS does not agree with me. When the Court took up the meaning of the words in the 2nd Amendment, the Court held those words to mean that U.S. citizens get to have their guns and the Federal Congress cannot place any limitations on that possessory right. Again, there is nothing in the Federal Constitution that bans other public entities from placing restrictions on gun ownership. That is why California has restrictions on assault weapons and certain types of ammunition, and why those restrictions have been deemed Constitutional. So to answer your question, a Strict Constitutionalist would not allow a citizen to install a howitzer. An interpretationlist court has held that the 2nd Amendment prohibits the Federal Congress from stopping you from getting a howitzer. But, again, that does not stop your State, county or city from taking your howitzer.
Boy, who put a quarter in Nort?