Let’s talk about something that has been a controversial subject ever since the JFK assassination and a thorn in my side – Gun Control.
Not that I am against regulations for the safety of the public concerning firearms, such as it being unlawful to shoot a firearm within a given distance from a roadway, resident, et cetera.
Not that I am against anyone owning a .50-caliber machine gun with a special permit or fixed in a manner that makes it non-firing for those who wish to collect military weapons for display or whatever. Not that I am against the right for any state of the Union to legislate laws that require citizens who wish to carry a concealed weapon to apply for a permit and/or be required to attend a safety class with instruction on the proper/safe use of firearms.
I am not against state or federal laws that prohibit possession of firearms by citizens who are mentally unstable or have been convicted of a federal crime. The reasons there are quite obvious.
I am not against states prohibiting citizens, even those with permits to carry concealed weapons (firearms), from carrying firearms into a government building or a place of large gatherings, such as stadiums. The reason there is quite obvious.
I am just tired of politicians (most of who are or have been lawyers who try to find loopholes in everything), misinformed citizens, or just citizens who don’t like firearms and expect the rest of us to feel the same way and not exercise our rights guaranteed by the Second 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.
If this is in the Constitution of the United States, ratified by the States – How can any state refuse a citizen the freedom guaranteed in the Second Amendment?
The argument over the Second Amendment, the right to bear and keep firearms, and the right of self protection has gone on long enough. It is time for states to recognize this right and keep their politics out of it. Citizens have the right to own firearms, carry firearms, and use them in self defense without fear of prosecution. Citizens also have the right to do none of the above and be firearm free, if that is what they choose. Freedom of choice.
Despite recent discussions, legislative actions, and bare-bone statistical facts with respect to purchase, possession, manufacture, and transportation of firearms there are still no definite resolution provided by the courts of just what the Second Amendment means or what it protects.
Whatever the Amendment may mean, it is a federal law that all states must abide, and any action to bar or change the amendment is left up to the Congress of the United States to either repeal the amendment or change it and must be ratified by the states of the Union in order to do that.
Recently you may have noticed that the Supreme Court has taken upon itself, mainly for political reasons of its members, to legislate from the bench; and this has become a dangerous travesty against our “check and balance” policies that preside over the actions and power of our government. The Supreme Court has used cases to override anything stated in the U.S. Constitution, thereby effectively making any amendment they choose null and void. This is no more acceptable than a state government overriding the U.S. Constitution and its amendments.
In United States v. Miller, the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. This law prohibited carrying shotguns that were less than 18-inches in barrel length. (This ruling did not bother me because I certainly wouldn’t carry such a heavy firearm when a 9mm auto pistol fits comfortably in a shoulder holster and provides more rounds in the magazine than a shotgun would). But I do not see why or how the government can prevent a homeowner from having a “sawed-off” shotgun in their home for protection.
After reciting the original provisions of the Constitution dealing with the militia, the Court observed that
…with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment was made. It must be interpreted with that end in view. The significance of the militia was that it was composed of civilians primarily, soldiers on occasion. It was upon this force that the States could rely for defense and securing of the laws, on a force that compromised all males physically capable of acting in concert for the common defense, who when called for service … were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Therefore in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not without judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Since this decision, Congress has placed more limitations on the receipt, possession, and transportation of firearms and numerous proposals for national registration or prohibition of firearms. If their argument for gun control relies on this case, they apparently didn’t read or understand what the Supreme Court was saying –
any part of the ordinary military equipment or that its use could contribute to the common defense.
In effect, this could mean that although a sawed-off shotgun is prohibited, the right to carry an M60 machine gun is – because this is part of military arsenal – Or how about a grenade launcher or an anti-tank or anti-aircraft missile launcher?
This, of course, is to the extreme and would be an expensive means of protection, as well as cumbersome to carry. The major argument against the Second Amendment is how it was written; when it comes to those that wish to see America “Gun Free.”
Howard J. Fezell writes in his article (1997) concerning Gun Control:
…Statist politicians in both major parties view the minority of people who actually produce wealth as nothing more than a source of tax revenue. Promises of more and better benefits for an increasingly dependent constituency are how statists win reelection. …The United States was born out of an armed rebellion fueled, in large part, by resentment over excessive taxation is a bit of history that makes statists extremely uncomfortable. It should, therefore, come as no surprise that congressmen and senators who dream of an ever-expanding gun ownership or even ban the production of certain classes of firearms. Claims by extremist groups such as Handgun Control, Inc. (HCI) that “just one more” gun law is necessary to “fight crime” or “reduce the level of violence” are simply a smoke screen. … In the minds of the people who promote the expansion of government power at the expense of individual liberty, gun prohibition makes perfect sense. …But what would happen if 50,000,000 Americans “just say no” to forking over more of their hard-earned money? …Disarmament of people kept (or to be kept) in servitude has historical precedent dating back to ancient times. The history of “gun control” in America shows that it has been used repeatedly as an authoritarian and elitist device to favor the powerful and politically well-connected and keep supposedly less worthy people “in their place.”
ORIGINAL INTENT
It seems that the major argument in courts and between citizens and citizens – and citizens v. politicians is – What was the original intent?
The original intent and purpose of the Second Amendment was to preserve and guarantee, NOT to grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to be a stipulation concerning the right to keep and bear arms. The Second Amendment was meant to preserve and guarantee an individual right for a collective purpose. That does not mean that it is a collective right. There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or Supreme Court decisions (before 20th century when we decided to let the courts legislate from the bench), that indicate that the Second Amendment was intended to apply only to members of an active militia. Citizens have the right to protect their home, property, and family, self and other citizens.
In his edition of Blackstone’s Commentaries on the Laws of England (1803), George Tucker who was a lawyer, Revolutionary War officer, legal scholar, and later a U.S. District Court judge, appointed by James Madison in 1813, wrote:
The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their conditions or degree, as is the case in the British government. …This may be considered the true palladium of liberty … The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under than mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Tucker’s remarks are solid evidence that the militia clause was not intended to restrict the right to keep and bear arms just to active militia, but he specifically mentions “self-defense.” And while he was an Englishman, it also gives testimony that this natural right of self protection is a world wide phenomenon. In every major case of the Supreme Court involving the Second Amendment, Tucker’s words are used in defense of it.
Another jurist from England is William Blackstone, who published Commentaries on the Laws of England, in four volumes between 1765 and 1769, and was credited for laying the foundation of modern English law and helpful to the American Founding Fathers in their pursuit to put together a U.S. Constitution.
Another jurist, William Rawle, who wrote the book: A View of the Constitution of the United States of America, and whose work was adopted as a constitutional law textbook at West Point and other institutions of education describes in Chapter 10 the scope of the Second Amendment’s right to keep and bear arms:
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He was also George Washington’s candidate for the nation’s first attorney general, but Rawle declined the appointment.
Justice Joseph Story is another famous jurist who was appointed to the Supreme Court as an Associate Justice by James Madison in 1811 and who write a constitutional commentary in 1833 entitled Commentaries on the Constitution of the United States.
In the Pennsylvania Gazette, February 20th 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:
Who are the militia? Are they not ourselves? It is feared, them, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are “the birth-right of an American.” …The unlimited power of the sword is not in the hand of either the “federal or state governments,” but, where I trust in God it will ever remain “in the hands of the people.”
The Federalist Papers was an “after action” report and a written discussion among the founder of the American republic concerning the Constitution that had been sent to the states for ratification and prior to the drafting of the Bill of Rights. Alexander Hamilton wrote in Federalist, No. 29 that he does not view the right to keep arms as being confined to active militia members:
What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen …The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. …Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
http://www.yale.edu/lawweb/avalon/federal/fed29.htm
James Madison wrote in Federalist No. 46:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attaché, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantage of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
James Madison, like Joseph Story expresses the idea that additional advantages accrue to the people when the citizens’ rights to arms is enhanced by having an organized and properly directed militia. The Founders realized that insurrections may occur from time to time and it is the militia’s duty to stop them. They also realized that the people with their arms had the right to restore their republican form of government by force, if necessary, as an extreme last resort. Alexander Hamilton makes this point in Federalist No. 28:
That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated thelessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force by law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction. 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. The people, without exaggeration, may be said to be entirely the masters of their own fate. …When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celebrity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
The U.S. Supreme Court in Cohens v. Virginia (1821):
The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth …
One may say that because the Federalist Papers were written before the Second Amendment, they lack relevance; but the Second Amendment is interpreted as protecting an individual right expanded to meet the needs of a militia to protect the people as well. Therefore the individual right to keep and bear arms is relevant. This argument was presented in the case of U.S. v. Emerson.
IN CONCLUSION
There are three ways the Second Amendment is usually interpreted to deny it was intended to protect an individual right to keep and bear arms:
- It protects a state’s right to keep and bear arms.
- The right is individual, but limited to active militia members because the militia clause narrows the right’s scope.
- The term “people” refers to the people collectively, rather than the people as individuals. (This is a favorite among the Sociocrats of today (progressive-democratic-socialists).
Yet, three jurists, who were living at the time of the founding of America wrote constitutional commentaries, read the Second Amendment as protecting a private, individual right to keep arms; therefore there is no contrary evidence from that period, as some would have us believe. It is true that times have changed since then because we have National Guard and State Militia on hand to perform duties necessary to keep peace, order and protect the general populace – and, who by the way, are also used when natural disasters occur. It does not mean that the clause pertaining to the individual to keep and bear arms is null or void. There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-20th century Supreme Court decisions that indicates that the Second Amendment as intended just to apply to members an active militia. Those that drafted the Amendment could have referred to the militia as they did in the Fifth Amendment, but the Bill of Rights as a whole is referring people as individuals, so why would one Amendment be any different? The militia clause and the individual right for a “collective purpose” was intended to be part of it, not separate. The Second Amendment does not claim that the states have a right to take away and not allow persons of mental disorders or who have been prosecuted for committing a federal crime or who are ex-convicts who committed a federal crime; but the rules apply to law abiding citizens; and as we will see later, law abiding citizens appreciate the rights of the Second Amendment and normally do not abuse those rights. There is an old saying that we used in the military – Better to have it and not need it, then need it and not have it.
This applies to citizens who have the right to carry concealed weapons – in case they need it. This is especially true for the female gender that is more apt to be violently attacked than males at any level of society. How many rapists could have been stopped? How many robberies could have been prevented? And so on.
Next posting will be Part Two – Do the states have the right to usurp the rights of the Second Amendment?
Lighthouse Journal 