Second Amendment: Trumped by the Fourth?
By Stuart Hale Shakman
April 12, 2018; all rights reserved.
The Fourth Amendment to the U.S. Constitution directly contrasts the term “the people” with the term “persons” in its opening phrase, to wit, “The right of the people to be secure in their persons, houses, papers … [etc.]", and is the only Amendment that contains both terms. This clear articulation attests to the nature of “the people” as comprising an encompassing or collective entity, in contradistinction to “persons” as being among individual encompassed entities, and establishes that these terms are not interchangeable.
Thus the term “the
people" in the Second Amendment (and
elsewhere within "the Bill of Rights", i.e., Amendments I-X) would likewise
seemingly denote a collective entity, independent of
any other prior considerations. This
perspective seems well-supported by the circumstance
that the Bill of Rights was ratified as a unit.
Within this context D.C.v.Heller* seems irreparably conflicted, having embraced and even started "with a strong presumption that the Second Amendment right is exercised individually ...". Accordingly a future judicial reassessment may find D.C.v.Heller, as well as the Second Amendment itself, trumped by the arguably-definitive terminology found in the Fourth Amendment.
"THE BILL OF RIGHTS" -- The First Ten Amendments to the U.S. Constitution
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.Amendment II
regulated Militia, being necessary to the security
shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of
war, but in a manner to be prescribed by law.
The right of
the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to
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 offence
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.
criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime
shall have been committed, which district shall have
been previously ascertained by law, and to be
informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for
In Suits at
common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury,
shall be otherwise re-examined in any Court of the
bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments
enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.
not delegated to the