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February 25, 2014

2nd and 5th Amendments

The 5th Amendment to the Constitution does not say what most people think it says. They think that it says that the government can take private property if there is just compensation. Instead, it says that there must be just compensation if the government takes private property. Well, courts have interpreted this to mean that the right to take property, eminent domain, is implied. Otherwise, how else could the government find itself justly compensating for taking property.

The 5th Amendment is as follows with our underlining of relevant parts: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

While there are several points to be made here regarding due process, public use, and just compensation, I want to focus today on the backwards language and interpretations of the right the government has to take property. Again, the amendment does not explicitly state that the government has the right to take property. That right is implied.

Now let’s turn our attention to the 2nd Amendment. What does it say about militias? Does it explicitly say that citizens have the right to form militias . . . as long as they are well regulated? I don’t think so. But just as the right of eminent domain is implied by the 5th Amendment, the right to form militias is implied by the 2nd. Lets review the 2nd Amendment:

“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.”

Well, it doesn’t explicitly say that the right of the people to form militias shall not be infringed. However, this right is implied by the language of the amendment in the same way as the right of eminent domain is implied by the 5th. That is, the word “militia” is mentioned in such a way as one must reasonably believe that the right to bear arms in a militia implies that militias can exist. Yet, it is reasonable to argue about the meaning of the words “well regulated.” Nevertheless, it is not reasonable to exclude the possibility of militias altogether.

But the government does not like competition. It doesn’t want the private sector to compete directly with the USPS, hence you can’t touch somebody else’s mailbox . . .  unless you work for the USPS. It certainly does not want the private sector to raise militias to compete with the government’s police powers. Nevertheless, the implication is that the 2nd Amendment clearly implies that militias may be formed.

So let me try to define what a “well regulated” militia might be like. It would not do anything unconstitutional such as, for example, violate anybody’s right to life, liberty, or property without due process of law. Could it protect persons’ rights to life, liberty or property if they were deprived of these rights without due process of law? For example, what could a militia reasonably do in the face of property confiscations? I’ll leave these and similar questions unanswered.

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