Latest Breaking News
In reply to the discussion: Multiple shooting in Kennesaw, Georgia at FedEx location [View all]happyslug
(14,779 posts)The Bill of Rights are a list of things the GOVERNMENT can NOT do, i.e. they can NOT jail you without a trial (With the exception of holding you for trial, which must be "Speedy" , the Government can NOT stop someone from speaking, or running a paper etc. The few mandates in the Bill of Rights, are more negative in practice then positive, i.e. you have a right to a Trial by Jury, a right to a "Speedy Trial". you have the right to your property, you have the right to exclude anyone from your property except when the Government had "probable cause" of some criminal activity, etc.
The Bill of Rights do NOT contain any POSITIVE RIGHTS, i.e. no right to housing, no right not to own a weapon, No Right to be issued a Weapon, etc. The Bill of Rights do not even give you the DUTY to speak, or type on the internet let alone require you to own a weapon. Those would be POSITIVE Rights.
On the other hand, the Federal, State and Local Government CAN make such POSITIVE ACTION by a Citizen a requirement by the simple act of passing a law making such POSITIVE ACTION a requirement. They could require you to serve in the Military (The Draft has always been ruled to be constitutional), they could require you to keep a weapon in your home (which was the case with the 1792 Militia Act, which was the law till 1903, not enforced, but still on the books). Nothing in the Bill of Rights forbids the Government from making such a requirement (For example, the Courts have long ruled that local government can REQUIRE all homes to be hooked up to sewerage, septic, water, electricity and other utilities, those again are things YOU ARE REQUIRED TO HAVE BY LAW).
At present no one is requiring anyone to have a weapon. Even in those local governments that require everyone to have a weapon, no punishment is tied in with NOT having a weapon (Such laws requires everyone in the municipality to have a gun, but if you do not have one, no jail time, no fine, nothing).
You also have to remember, when the Second Amendment was first proposed by James Madison in his proposed Bill of Rights, it contain an exception for people with religious objections to owning weapons. That exception was removed when it was pointed out it could be used to take guns from people who opposed the Central Government, on the grounds their "Religion" forbade them to support said Government and as such thus their "Religion" forbade them to have guns. Congress had already fully accepted the concept that one's personal beliefs could be a "Religion" and feared that given that definition of "Religion" it could be used to strip people of their Right under the Second Amendment.
Thus, your refusal to have a weapon in your home is NOT in the Bill of Rights, it is solely the product of the law independent of the Constitution. ,As such the Government (Be it the Federal, State of Local Government) can change that law and make it a REQUIREMENT you have such a weapon. There is NOTHING in the Constitution that prohibits such a requirement.
Now, all of this is theoretical, for no one is proposing such mandatory weapons possession. On the other hand, the Second, as it is written, does NOT prohibit such a requirement and neither does the rest of the Bill of Rights. In simple terms, the Constitution will NOT protect you if the Government mandates weapons possession by someone like you. The Government has the ability to make such a requirement, it just has not since 1903 (And enforced such a requirement since the 1790s).