When the First Amendment Clashes With The Second Amendment

The Bloomington, Indiana Herald Times made an announcement on November 30th of 2009 that it would launch a new gun permit data base where anyone is able to go on line and search that newspapers data base to discover the number of gun permits by county, city, town or street. While, at this time the names and addresses of people with gun permits are being withheld, it is a disturbing practice that truly serves no purpose. Of course, the freedom of the press shall not be abrogated or derogated and they are well within their right to publish such information. They have the right to do so because gun permits are public records.

This may seem to be a conflict between the First and Second Amendment but it is not. The question should never be does the press have the right to publish public records, the question is what makes any state or the federal government think they can impose permit laws to begin with? I have always held the strong conviction that the "pen is mightier than the sword", (although I am not so sure it is mightier than a gun), and I have never owned a gun nor was I raised in any "gun culture". However, I have held with equal conviction that the primary purpose of the Second Amendment was to make sure the First Amendment and all subsequent Amendments, particularly within the Bill of Rights, was effectively protected.

It has long been a claim by those who assert that the local, state and federal governments do have a right to regulate gun ownership based on the language of the Amendment itself. The Second Amendment in its full text states:

"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."

It is the "well regulated militia" that is used to justify the current belief that government has a right to permit gun ownership. There are major flaws in this argument the most important one being that one can not rely on part of the text of the Second Amendment and ignore the rest in order to justify such permitting. A gun permit means that governments can deny granting a permit and that denial of permit then becomes an infringement on the right of a person to keep and bear arms. There are those who will argue that the Second Amendment is not an individual right but a collective right where "a well regulated militia" is guaranteed the right to keep and bear arms but this is not what that Amendment says.

What then, is meant by "well regulated militia"? Did it mean only those who served in a militia have the right to bear arms? Consider what our Founders said on the matter. First there is Alexander Hamilton, one of the authors of the Federalist Papers which itself was a collection of pamphlets written by he, John Jay and James Madison in defense of the proposed document that became The Constitution for the United States of America. In Federalist Number 28 Hamilton states:

"If the representatives of the people betray their constituents, 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, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair."

Hamilton also says in the Federalist Papers 184-188:

"The best we can hope for concerning the people at large is that they be properly armed."

In Federalist Papers Number 48 James Madison has this to say:

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."

Thomas Jefferson in his Proposal for the Virginia Constitution wrote this:

"No Free man shall ever be debarred the use of arms."

In 1787 in a letter written to William Stephens Smith Jefferson wrote:

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

Samuel Adams made this assertion:

"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "

Noah Webster had this to say:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."

Patrick Henry said this:

"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"

In conclusion, I would like to quote a man who was never American, but a tyrant of another nation, not because of but in spite of Godwin's so called smarmy little "law", Adolf Hitler once said:

"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."

It is my firm belief that permitting guns in the U.S. is unconstitutional and should be challenged by the People.

I quite agree but we had a civil war and the rights of the people and the states lost. There is really no legal pretext for issuing permits for guns as this constitutes "permission" rather than a "right".
This is why I could never live in a anti-gun state like NY or California.

It will be interesting to see what kind of gun control scheme the democrats will try to push through in the next 3 years. Remember, were Charleton Heston not armed we'd still be under the rule of apes!

reply to post by Asktheanimals


Highly agree! If the Second Amendment were intact and effective, there wouldn't be a gun permit database. You do not have to ask someone's permission to exercise a right, but you do for a privilege.

[edit on 12/9/09 by Ferris.Bueller.II]

reply to post by Jean Paul Zodeaux


Jean Paul, I have a question for you.

Just trying to see if something like this could be used against the high and mighty newspapers of today.

Now, if I am correct, news reporters are required to submit credentials to receive press passes and the like. Also newspapers depending on the business set up, need some type of corporate paperwork which puts all of them in the public domain.

So, can we the people submit a FOIA request for these Newspaper reporters and owners information.

I wonder how they would like it if we published their names, addresses and phone numbers on line.

Kind of turn the tables on this invasion of privacy.

Maybe start doing it to all of the officials in government also. Or do they fall under the overlord status of the new gestapo crap they pull.

These invasions of privacy by government and the mass media is really getting tiresome.

reply to post by endisnighe


While the press loves to refer to themselves, maddeningly so, as the "Fourth Estate", (presumably meaning the unofficial fourth branch of the government), they are not. They are private enterprises entitled to privacy, unless they are incorporated, then they are a public company that exists by the good graces of the People. A quick search on the New York Times and the Tribune Company, (that recently took over the Los Angeles Times), reveal that they are corporations and as such they are entities that exist by statute and not by right. It is an interesting question and one worth researching. You have given me homework for the next few days. I will do more research and see what we can do, my friend.

Legally, the people can demand a corporation be dismantled if it is disobeying the laws or breaking the terms of its charter. However, in recent times there have been concerted efforts to do just that, (UNOCAL in California being one example), where people ask the Attorney General to dismantle a corporation. There were two Attorney Generals for the state of California who both on separate occasions declined to comply. I will do more research on that as well and get back to you.

Letters from the editor posted here.


Their argument is sufficient for me.

I don't agree with their actions, however I don't think it poses a threat to the 2nd amendment.


[edit on 9-12-2009 by mnemeth1]

Originally posted by endisnighe
Now, if I am correct, news reporters are required to submit credentials to receive press passes and the like. Also newspapers depending on the business set up, need some type of corporate paperwork which puts all of them in the public domain.

So, can we the people submit a FOIA request for these Newspaper reporters and owners information.

FOIA does not apply to private citizens and/or private business. It does apply to the aforementioned that do business with a government entity though.

There are also very specific rules in regards to FOIA on the records obtained and released.

reply to post by Jean Paul Zodeaux


To summarize, since it is unconstitutional for government to collect gun data in the first place, it is unconstitutional for government to post said data on the internet.