Tag Archives: guns

The 2nd amendment as passed by the Congress 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.

As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:

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

While this is the law of the land these simple words may defend the right for the “people” or the “militia” to have arms. However, depending on how you approach the topic, the devil (as every good lawyer knows) is in the details. Most folks that are for gun control are NOT trying to take guns away completely; they are trying to “control” them. To insist that “control” is the same as abolition is to ignore the definition of these words and set up a ‘straw man’ argument. It is easy to push the control of arms to an extreme position of abolition and, in so doing, dismiss the argument as unconstitutional. Of course, this is an informal fallacy of logic and, I think, not allowable in pragmatic jurisprudence.

Additionally, while the abolition of arms is not defensible we do have laws about who can own guns. We do not allow felons or mentally ill people to own weapons. These laws have historical judicial precedence and agreement by the vast majority of the electorate. These guidelines are common sense and I do not think even Jefferson would object to them. From a minimalist reading of the second amendment these kinds of laws should not be allowed. However, they are allowed and sustained by Federal and State laws. Accordingly, if cities by democratically supported laws want to place additional regulations and controls on the right to bear arms there is no legal reason why they should be constitutionally prohibited to do so. Apart from whether or not the “militia” is the military or survivalists in Utah, a democracy has every right to interpret the 2nd amendment as they choose. An outright ban of guns may be unconstitutional but there is nothing in 2nd amendment that prohibits control and regulation of arms. It seems to me that judicial precedence would support the idea that a complete ban of guns OR a carte blanche license for anyone and everyone to own a gun has been deemed unconstitutional – as is typical, laws and justice, universals and particulars require continual maintenance to retain pertinence and viability. “Original intent” is a pipe dream, metaphysic the carries the illusion of immutability and permanence but does little to address our lived environment.

Guns and False Quotes

“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes….Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” (Thomas Jefferson)

This was not a quote by Jefferson as many on the net have asserted.  He  compiled a book of quotes called, “Legal Commonplace Book.”  The quote is actually from Cesare Beccaria’s Essay on Crimes and Punishments.  The only notation made by Jefferson on Beccaria’s quote is, “False idee di utilità.” or …false idea of utility.  It should not be attributed to Thomas Jefferson unless one’s philosophy allows for the sophistry of ‘false ideas’.

See this reference:


Also, this was not in the Constitution as some have maintained…”that it is their right and duty to be at all times armed”.  It is in a personal letter…  

To Major John Cartwrigt Monticello, June 5, 1824

Here is a fuller context to the quote…

“The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.”