As an attorney, questions are usually asked during family law conferences with clients regarding their rights to “arm” themselves and to what extent they have a 2nd Amendment right to arm themselves. It is not a simple question to answer especially to a person not familiar with the US Constitution and its interpretations.
However, a party who is under a “protective order” especially in a family law case is not allowed to exercise their 2nd Amendment freedom to possess firearms or even ammunition as long as the “protective order” is in force.
Understanding or explaining as an attorney the 2nd Amendment to the US Constitution is not like understanding the meaning of a “Charlie Brown” cartoon. If a person wants to understand the true meaning of this important piece of our history, we must look at the meaning of the document, like any other historical document, and look into its historical context.
America, 200 years ago was not the America of today. America was not a “superpower”. It was a frontier country still depending on England and other European countries for its products.
The 2nd Amendment is a brief statement of what our founders believed to be an important facet of American Life at that time. The Amendment opens with a recitation about a need for “a well-regulated Militia…”. But then, the Amendment declares that the right secured by the Amendment is a right that is to be free of “infringement” meaning the right is not just a right of the state or of the United States to provide a well-regulated militia. Rather, it is the fundamental “right of the people to keep and bear Arms”. Who are they referring to when “people” are mentioned? The “people” and the state or the United States are one and the same entity.
“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.” At the time it was written, the “people” were the Army, Navy, Marines, etc. We had no military. The defense of this young country was in the hands of its inhabitants being mostly rural farmers raising crops and animals.
So why are there so many misunderstandings about this Amendment? The problems arise then today’s society tries to make a connection between a “Militia” and about “people’s rights”. Why should the two issues be connected? Obviously they are connected so which one takes priority in interpreting the 2nd Amendment? Should it mean that a “Militia” is necessary to protect the interests of our country? Therefore the people in the Militia should have arms. Are these one and the same? Or, is it two separate entities and read as two different statements, one being the Militia and the other being the individual with their rights to bear arms.
A Militia in the 1700s is not the same as a Militia in 2015. If it was the same, then a Militia would be a uniformed body of troops under the command of the government. Hence no private individual “right” to arms would exist. A “well-regulated Militia” was necessary for early America because that was the basis of our country’s military. This could only be attained by “the people” and would only be of use if the people were equipped and skilled with arms. Hence the individual right to keep and bear arms was essential. However, in today’s society, the definition of our right to keep and bear arms has been evolving to a point where the rights of Americans are being infringed by the same people that demand an expanding definition of the 2nd Amendment to the detriment of other people’s right to live in a society free from gun violence originating from the broad and unrealistic application and interpretation of the 2nd Amendment.
If you are involved in a family law case, and you have a pending protective order or any order involving family violence, please contact a family law attorney to discuss your rights and obligations under the laws of the State of Texas especially in connection with domestic violence and a family law matter pending in Texas Courts.