The right to keep and bear arms in Nevada: Part I

Lawmakers seem eager to misunderstand the Second Amendment

By Ben Robison
  • Wednesday, October 21, 2009

Is it possible that Nevada legislators who claim to support the Second Amendment actually oppose it?  When one looks at state laws and the Nevada Constitution, it becomes apparent that either state legislators have never understood the intent of the Second Amendment, or they are in fact hostile toward it.

The historical record surrounding the Second Amendment is clear. The Framers included the right to keep and bear arms for one reason: self-defense against tyrannical government

"If the representatives of the people betray their constituents," wrote Alexander Hamilton in Federalist No. 28, "there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government. ... The citizens must rush tumultuously to arms. ..." 

While it is generally acknowledged that all people have the right to defend themselves against violent criminals, the original purpose of the Second Amendment is more fundamental: It guarantees that citizens of the United States also shall always have the ability to protect themselves from despotic government.

Within a federal form of government, continued Hamilton, the two main categories of governing entities, state and federal, would always be vigilant in keeping the other in check. Yet, a third entity was needed to check the other two. This is where the power of the people came into play, he wrote. "The people by throwing themselves into either scale, will infallibly make [that scale] preponderate. If their rights are invaded by either [state or federal government], they can make use of the other as the instrument of redress."

James Madison, also, explained how individual armed citizens serve as a check upon government's tendency toward tyranny. If the federal government acted to restrict liberty, he wrote in Federalist 46, "the State governments, with the people on their side, would be able to repel the danger." 

And the reason that the people would be able to act to repel the danger? It is, he wrote, due to "the advantage of being armed, which the Americans possess over the people of almost every other nation. ..."

Both Founding Fathers thus illuminate the real meaning of the Second Amendment: Notwithstanding the need for a well-regulated militia, "the right of the people to keep and bear arms shall not be infringed."

The contrast on this score between the U.S. Constitution and the Nevada Constitution is revealing. The state document — written during the heat of the Civil War — had to meet certain irregular conditions ordered by then-President Lincoln. Thus the Nevada Constitution says that, "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes." 

Every citizen has the right to keep and bear arms, period. Enumerating what activities arms can be used for creates an implied restriction. While the term "lawful purposes" is so vague that it could be interpreted to mean almost anything, it is the government that attempts to do the interpreting — giving it the opening to violate the Second Amendment when desired.

In the era of America's founding, some argued that should the government ever attempt to usurp power from the people, the problem could be remedied by assembling the state delegates. To that, Patrick Henry replied, "Guard with jealous attention the public liberty. ... Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. ...

"We should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone. ... Did you ever read of any revolution in a nation ... inflicted by those who had no power at all?"

The individual right to keep and bear arms is the critical and final check on all levels of government.

The wording of the Nevada Constitution suggests it could be used to attempt to circumvent the original intent of the Second Amendment. State and local governments appear to have exploited this discrepancy to enact gun laws that infringe on Second Amendment rights. 

From Clark County's registration and waiting-period laws to state-level background checks and the unconstitutionality of concealed-weapon permits, Nevada's gun laws restrict individual liberty and allow the government to usurp more power than what it is granted by people through the U.S. Constitution.

Ben Robison is a contributing writer to the Nevada Policy Research Institute.

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