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Editorial See other Editorial Articles Title: Rudy Giuliani shows his Ignorance of the Second Amendment During a town hall meeting in northwestern New Hampshire last week, presidential hopeful Rudy Giuliani told a former police office: "You have a constitutional right, that is protected, to bear and carry arms. It is the Second Amendment. If someone disagrees with that, you have to get the Constitution changed." Since Mr. Giuliani is a former federal prosecutor and these individuals' knowledge of the Constitution appears to be limited to reading court cases, the author decided to use a United States Supreme Court case to show prospective voters, who care about gun rights, that Giuliani is totally ignorant of the nature of the Second Amendment. In 1875, in the case of United States v Cruikshank, 92 US 542 (1876), the Supreme Court ruled that the rights enumerated in the First and Second Amendments were not granted by the Constitution and were not dependent upon the Constitution for their existence. The Court also ruled that these Amendments were restraints on the powers of the federal government. The case involved alleged violations of Section 6 of the Enforcement Act of May 31, 1870. The defendants had been convicted on the sixteen-count indictment of violating the rights of two individuals whose rights were "granted or secured by the Constitution or laws of the United States." In discussing the case, the Court stated: "To bring this case under the operation of the statute...it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the criminal matter has not been made indictable by any Act of Congress." In discussing federal powers, the Court said: "The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States." The Court defined the legal question before it as follows: "We now proceed to an examination of the indictment to ascertain whether the several rights which it is alleged the defendants intended to interfere with are such as had been in law and in fact granted or secured by the Constitution or laws of the United States." In rejecting the assertion that the plaintiffs' right to keep and bear arms had been violated by the defendants because the right was "granted or secured by the Constitution or laws of the United States," the Court ruled: "The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed: but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National [Federal] Government." Since the right to keep and bear arms was not created by the Second Amendment, it cannot be classified as a constitutional right because, as acknowledged by the Court, the right exists independent of the Amendment. Thus, contrary to the inference by Giuliani, repeal of the Second Amendment would not negate the right. The sole purpose of the Amendment, as stated by the Court, was to restrain the powers of the federal government concerning the right to keep and bear arms. Giuliani professes to be a "strict constitutionalist" and claims he will only nominate "originalists" for the federal judiciary if he is elected president. If Giuliani's nominees share his distorted view of the Second Amendment, then how can the right to keep and bear arms survive a Giuliani Administration and the rulings of his "originalists?"
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