Poper
Member
I apologize for the length of this thread, but I feel it necessary to be read in its entirety. This lady has expressed the best reasoning I can ever recall ever having read regarding the 2nd Amendment.
Mods: Please move to another forum if you feel it would be more appropriate.
Posted on quora December 24, 2020 by Nancy Kelly:
I disagree with this statement:
"Therefore by definition the Bill of Rights are a group of Rights that the Constitution explicitly states in its text to the people.”
I earlier posted (and re-post here, sorry), what I deem to be the more accurate Bill of Rights interpretation, which I wrote in collge as my Poli-Sci term paper (circa 2001, which I received a double ‘A’ grade-only one given in 20 years of my instructor’s teachings). It is not copywritten, so feel free to share.
GUN CONTROL IS UNCONSTITUTIONAL
Historical Background:
During the State ratification process , the Constitution came under sharp criticism by opponents known as the ‘anti-federalists’ led by Gov George Clinton and Robert Bates of NY, Samuel Bryan of PA and Patrick Henry of VA, who expressed alarm that the powers granted to the Federal Government by the proposed constitution would lead to the destruction of State governments.
E.g. 2nd Amendment
The provision guarantees the RIGHT of the people to keep and bear arms without interference by the federal government.
In the early history of the country the state militia was made up of private citizens, who usually furnished their own arms so that, during the Revolutionary War for example, the ‘minute men’ could be assembled on short notice. Today the state militia is a body of citizens which, under law, can be called upon by the Governor or the President to protect the rights and security of the people, or to enforce law.
The rights to keep and bear arms as part of English and American law antedates not only the Constitution, but also the discovery of firearms.
Under the laws of Alfred the Great, whose reign began in A.D. 872, all English citizens, from nobility to the peasants, were obliged to privately purchase weapons and be available for military duty. This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility.
Under the Assize if Arms of 1181, the whole community of freemen between ages of 15 to 40 were required by law to posses certain arms, arranged in proportion to their possessions, and were required twice a year to demonstrate they were appropriately armed.
In 1253 another Assize of Arms expanded the duties to not include only freemen, but also villeins, who were the English equivalent of surfs. Accordingly, all citizens from 15 to 69 years of age were obliged to be armed.
In 1369, the King ordered all citizens ‘at leisure time on holidays’ to ‘use in their recreation bows and arrows’ and to stop all other games which might detract them from this practice.
In 1623, Virginia forbade its colonists to travel unless they were ‘well armed’; In 1631 it required all colonist to engage in target practice on Sunday and to ‘bring their peeces to church’.
In 1658 it required every householder to have a functioning firearm within its household, and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so.
In Massachusetts, the first session of the legislative ordered that not only freemen, but also indentured servants own firearms, and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed(1)
(1). W. Leo Skousen, ‘The Making of America’ pp. 696-697
The Second Amendment was the direct result of two provisions and the fear that the Federal Government would usurp the power delegated to it by the States. The anti-federalists vehemently objected to two provisions in the proposed constitution. First was the power of Congress to maintain standing armies in times of peace and second was total congressional control of the militia. Their fears of standing armies are expressed as follows:
.....it appears, that the evil to be feared from a large standing army in time of peace, does not arise solely from the apprehension, that rulers may employ them for the purpose of promoting their own ambitious views, by that equal, and perhaps greater danger, is to be apprehended from their overturning the constitutional powers of the government, and assuming the power to dictate any form they please(2).
(2) Ralph Ketchum, ed., ‘The Anti-Federalist Papers and The Constitution Convention Debates’ (1986; New York, Penguin), pp. 242-243
It is a historical fact that in nations where political leaders want to curtail the rights of people and take away their property and freedom, they always begin by trying to disarm them. This is usually done first by requiring them to register their firearms and imposing a heavy penalty on those who do not.
It has been determined that in many instances that the next step is to deliberately provoke widespread rioting and violence. The governance can then use this as an excuse to confiscate all firearms in the possession of private citizens and do it on the grounds ‘we have to somehow stop all this killing’.
In The Federalist, James Madison spoke of an ARMED CITIZENRY RESISTING OPPRESSIVE GOVERNMENT. (It should be noted this was almost four years before the ratification of the Second Anendment).
...(opposing the army would be) a militia amounting to near a half million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may we’ll be doubted, whether a militia thus circumstance could ever be conquered by such proportions of regular troops.(3)
(3) Michael Loyd Chadwick, ec, ‘The Federalists’ (1987, Springfield, Global Affairs) Essay #46, pp. 257-258
The fears expressed by the anti-federalists would lead to the adoption of the Second Amendment. During the state ratification process MA, NH, VA, NY and RI ratified the Constitution with a stipulation that their delegates in Congress ‘exert all their influence and use all reasonable and legal methods’ to obtain amendments. The proposed amendments clearly sought to protect the rights of the PEOPLE, not the militia, to keep and bear arms. As pointed out by Patrick Henry, the Constitution grants Congress exclusive authority to arm the militia [see Article I, Section 8, Clause 16] independent of any proposed amendment.
THE MILITIA
Many Americans do not even realize that they belong to the militia in their state. They confuse their state militia with the National Guard, which is a specialized reserve corps in which each state trains at federal expense for immediate service. Under Title 10, Section 31, of the US Code, the militia of each state includes ‘all able-bodied men at least 17 years of age and under 45 years of age who are or have [made] a declaration to become citizens’. (If Equal Rights Amendment had been adopted, this provision would have included all females between those ages).
Opponents of the Second Amendment have attempted to claim that the militia and standing armies are synonymous. Therefore the right to keep and bear arms is no longer necessary because the United States possesses the most powerful military force in the world. A little historical honesty on their part would dispel this myth. The militia is defined as follows:
‘The body of citizens in a state, enrolled for discipline as a military force but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army’(4)
(4) Henry Campbell Black, ‘Black’s Law Dictionary, 4th Ed.,’ (1968, West Pub., St. Paul) p. 1145
The militia was first and foremost a state military force loyal to their particular community and state. It remains as such until called into service by the United States.
‘The militia, until mustered into a United States service is considered a state force’ (5)
(5) John Bovier, ‘Bovier’s Law Dictionary’, Vol 2., (1870, Geo. Childs, Philadelphia.) p. 179.
LIMITED GOVERNMENT
The right to keep and bear arms was considered by the founding fathers to be an ‘inalienable right’ connected with the preservation of Life, Liberty and Property. Today Americans are the best-armed civilian population in the world. The number of private citizens owning arms is estimated to be around 50 million [~1995]. The number of firearms in the possession of private citizens is estimated to be between 159 and 200 million weapons [again ~1995]*.
The Federal government is one of limited powers. Unlike the states, which can exercise every power NOT PROHIBITED, the Federal government can exercise no power beyond those SPECIFICALLY GRANTED. The powers delegated to the Federal Government are SPECIAL, NOT GENERAL. Thus, Congress is prohibited from passing laws just because it sees the need.
The application of these ‘Special Powers’ was addressed by James Madison in The Federalist:
“The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.”(6)
(6) The Federalist, supra, Essay #45, p. 252.1
Put quite simply, the Federal government was empowered to deal with external affairs while the States would concern themselves with domestic and internal affairs; Thomas Jefferson made this point in 1824:
“With respect to the State and Federal governments, I do not think their relations [are] correctly understood by foreigners (or Americans for that matter). They generally suppose the former subordinate of the later, but this is NOT the case. They are coordinate departments of one simple and integral whole. To the State governments are reserved all legislation and administration in affairs which concern their own citizens only; and to the Federal government is given whatever concerns foreigners or citizens of other states, these functions alone being made federal. The one is domestic, the other the foreign branch of the same government; having no control over the other, but within its own department. There are one or two exceptions only to the partition of power. (7)
(7) Maxfield, Cook and Skousen Eds., ‘Timeless Treasures from Thomas Jefferson’, Part II of ‘The Real Thomas Jefferson’ (1973, NCCS, Washington, D.C.) p. 434
The Second Amendment is not one of those exceptions. The right to keep and bear arms is a domestic, not a foreign issue. Therefore it would come under the purview of State jurisdiction, not Federal.
The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such individual rights’ interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself.
If in fact, the language creates a right protecting states only, there might be a reason for it to be inserted into the Federal Constitution, but no reason for it to be inserted in State constitutions.
States’ Bills of Rights necessarily protect only against action by the state, and by definition. A state cannot infringe it’s own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state’s’ own power would create an absurdity.
NO SUCH THING AS CONSTITUTIONAL RIGHTS
Contrary to the popular belief there is no provision in the Constitution or its amendments which grants any so called rights to the people of several states. The concept of ‘Constitutional Rights’ granted by government is a contradiction to the spirit of the Declaration of Independence, which states:
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed....(8)
(8) complete ‘Declaration of Independence’ at appendix I.
The founding fathers made it very clear that the rights of man do not originate from government. The purpose of government is to secure these rights against encroachment by both the people and the government itself. If the rights of man originate from government and constitution, then those rights are subject to modification or abolishment based on the mandates of governments. Further, unalienable appears to mean ‘creator-given’ (born with, like your skin), so if ‘given’ by a creator, who is man to refute?
ORIGIN OF THE BILL OF RIGHTS
The Second Amendment is part of what is known as ‘The Bill of Rights’. The lack of a Bill of Rights was one of the leading objectives of the anti-federalists to the proposed Constitution. During the state ratification process, several of the State Conventions proposed the addition of a Bill of a Rights. The VA convention declared:
‘That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People....(9)
(9) ‘Documents Illustrative,’ Supra, p. 1028
In September 25, 1789, Congress proposed twelve amendments to the Constitution. The states ratified numbers three through twelve December 15, 1791. Those became known as the Bill of Rights.
The misconception surrounding the “Bill of Rights” can be traced directly to the American people being misinformed as to its true nature.
When the Bill of Rights was submitted to the states for ratification, it contained a preamble declaring its purpose. The preamble contained three paragraphs, but most, if not ALL editions of the Constitution include only the THIRD paragraph of the preamble to the Bill of Rights. The COMPLETE preamble is printed below as it appeared in 1789:
CONGRESS OF THE UNITED STATES
begun and held at the City of New York, on Wednesday the fourth of March, one thousand seven hundred eighty nine.
THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses be added. And as extending the ground of public confidence in the Government, will best ensure the beneficent ends if its institution.
RESOLVED by the Senate and House of Representatives of the United Stated of America, in Congress assembles, two thirds of both houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all, or any which Articles, when ratified by three fourths of said Legislature, to be valid to all intents and purposes, as part of said Constitution; viz.
ARTICLE in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislature of the several States, pursuant to the fifth article of the original Constitution.
The first paragraph reveals that the amendments were being proposed as a direct result of action taken in the state ratifying conventions. The declared purpose of these amendments is to prevent the Federal government from misconstruing or abusing its powers. To accomplish this, “further declaratory and restrictive clauses” were recommended. These amendments did not grant any such ‘RIGHTS’ to the people, but rather, placed additional PROHIBITIONS on the Federal government.
TEXT OF THE SECOND AMENDMENT
The Second Amendment declares:
‘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.’
ANALYZING THE AMENDMENT
It is important to note before analyzing the amendment, that the Bill of Rights did not amend any provision of the Constitution. Gun control advocates claim the second amendment applies to the right of the militia to keep and bear arms, not the people. The Constitution grants Congress exclusive power.
The Second Amendment would be redundant and superfluous if the interpretation being advanced by gun control advocates was correct. The Constitution specifically authorizes Congress to arm and regulate the MILITIA. Their interpretation is also in conflict with the resolutions passed in the State ratifying conventions which formed the basis of the amendments.
In his book, ‘A Familiar Exposition of the Constitution of the United States’ Joseph Story (Justice of the SCOTUS from 1811-1845) offered the following analysis:
“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.”(10)
(10) Joseph Story, ‘A Familiar Exposition of the Constitution of the United States’, (1859 Harper, New York), p. 319
Keeping in mind that the “Bill of Rights” does NOT grant Constitutional RIGHTS to the people, but rather, places PROHIBITIONS on the Federal government, the Second Amendment can be summed up as follows:
A well regulated militia, being necessary to the security of a free State, shall not be infringed by Congress and the right of the people to keep and bear arms shall not be infringed by Congress.
THE FEDERAL COURTS
The American people have been mistakenly led to believe that the Federal judiciary has the power to make and interpret the Constitution. The Constitution grants them no such power. Article I, Section I, declares that:
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Whenever the Federal judiciary attempts to make law through judicial decisions, it does so in violation of the Constitution. There is NO provision for the Federal judiciary to INTERPRET law. Alexander Hamilton writing the Federalist made this point very clear:
(It is alleged that) “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that if the legislature. The power of construing laws according to the ‘spirit’ of the Constitution, will enable courts
to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner to the revision or correction of the legislative body. This is as unprecedented as it is dangerous....But the errors and usurpations’ of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe laws according to the ‘spirit’ of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State....(11)
(11) The Federalist Papers, Supra, pp. 437-438
The anti-federalist were not convinced as shown on the writing of “Brutus” in Essay No. XI which appeared in the New York State papers in January 31, 1788:
‘That the judicial power of the United States will lean strongly in favor of the general government, and will give such an explanation to the Constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.’ (12)
(12) Ibid, p. 296
‘This power in the judicial, will enable them to mold the government into almost any shape they please.’ (13)
(13) Ibid, p. 298
Given the power of interpretation, the judiciary could subvert the Constitution and expand or modify the powers delegated to the Federal government. The principal of “limited government” would be meaningless if the judiciary possessed this power.
Recent ‘gun control’ legislation passed by Congress will result in numerous cases being adjudicated in the Federal Courts and under the constitutionality if these laws are challenged. This makes it more important than ever to understand the role of the judiciary:
In the case of United States V Butler, decided in 1935, Supreme Court Justice Roberts succinctly stated the function of the Federal Courts:
‘There should be no misunderstanding as to the function of this court. It is sometimes said that the court assumes a power to over-rule or control the actions of the people’s representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch has one duty - to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the later squares with the former. All the court does, or can do, is to announce it’s considered judgement upon the question. The only power it has, if such may be called, is the power of judgement. This court neither approves nor condemns any legislative policy. It’s delicate and difficult office is to ascertain and declare whether legislation is in accordance with, or in contravention of, the provisions of the Constitution; and having done that, it’s duty ends.(14)
(14) U.S. vs. Butler, 297 US I, 62 (1936)
Comparatively speaking, you might ask, “What about gun control to curb crime?” There are those who feel it would cut down on crime if there were federal law prohibiting the people from having certain types of guns. Senator Orin Hatch (R-UT) chairman of the Senate subcommittee on the Constitution, said:
“If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying...that they must sweep under the rug Southern attempts at gun control in the 1870-1910 period, the Northeastern attempt in the 1920-1939 period, and the attempts at both Federal and State levels in 1965-1976 - establishes the repeated, complete, and inevitable failure of gun laws to control serious crime.(15)
(15). W. Clean Skousen, ‘The Making if America’, p. 695
CONCLUSION
The key to understanding the Second Amendment rests in our system of limited government. The Federal government is a government of limited enumerated powers. Every power NOT granted is DENIED. There is no implied powers beyond those incidental to a power specifically granted. (16)
(16) See Art. I, Sec. 8, Cl. 18, the necessary and proper clause
The Bill of Rights was incorporated into the Constitution because the people of the several States demanded, as expressed in the preamble, important restrictions on the powers of the Federal government.
The Second Amendment is NOT a grant of legislative power, as is generally expressed, but rather a PROHIBITION or DENIAL of legislative power. Congress cannot lawfully exercise powers not granted. If a power is not granted, Congress is powerless to legislate. The same doctrine applies to the Federal courts. They posses no constitutional authority to adjudicate cases based on powers not granted to the Federal government. A RIGHT is NOT granted by THE CONSTITUTION.
Neither is it dependent upon the Constitution for its existence.
The Second Amendment has no other affect than to restrict the powers of the national government with regards to the people’s right to keep and bear arms.
A right is not dependent upon the Constitution.
“We the People believe, when people fear the government there is tyranny; when the government fears the people, there is liberty.”
~ Thomas Jefferson
Mods: Please move to another forum if you feel it would be more appropriate.
Posted on quora December 24, 2020 by Nancy Kelly:
I disagree with this statement:
"Therefore by definition the Bill of Rights are a group of Rights that the Constitution explicitly states in its text to the people.”
I earlier posted (and re-post here, sorry), what I deem to be the more accurate Bill of Rights interpretation, which I wrote in collge as my Poli-Sci term paper (circa 2001, which I received a double ‘A’ grade-only one given in 20 years of my instructor’s teachings). It is not copywritten, so feel free to share.
GUN CONTROL IS UNCONSTITUTIONAL
Historical Background:
During the State ratification process , the Constitution came under sharp criticism by opponents known as the ‘anti-federalists’ led by Gov George Clinton and Robert Bates of NY, Samuel Bryan of PA and Patrick Henry of VA, who expressed alarm that the powers granted to the Federal Government by the proposed constitution would lead to the destruction of State governments.
E.g. 2nd Amendment
The provision guarantees the RIGHT of the people to keep and bear arms without interference by the federal government.
In the early history of the country the state militia was made up of private citizens, who usually furnished their own arms so that, during the Revolutionary War for example, the ‘minute men’ could be assembled on short notice. Today the state militia is a body of citizens which, under law, can be called upon by the Governor or the President to protect the rights and security of the people, or to enforce law.
The rights to keep and bear arms as part of English and American law antedates not only the Constitution, but also the discovery of firearms.
Under the laws of Alfred the Great, whose reign began in A.D. 872, all English citizens, from nobility to the peasants, were obliged to privately purchase weapons and be available for military duty. This was in sharp contrast to the feudal system as it evolved in Europe, under which armament and military duties were concentrated in the nobility.
Under the Assize if Arms of 1181, the whole community of freemen between ages of 15 to 40 were required by law to posses certain arms, arranged in proportion to their possessions, and were required twice a year to demonstrate they were appropriately armed.
In 1253 another Assize of Arms expanded the duties to not include only freemen, but also villeins, who were the English equivalent of surfs. Accordingly, all citizens from 15 to 69 years of age were obliged to be armed.
In 1369, the King ordered all citizens ‘at leisure time on holidays’ to ‘use in their recreation bows and arrows’ and to stop all other games which might detract them from this practice.
In 1623, Virginia forbade its colonists to travel unless they were ‘well armed’; In 1631 it required all colonist to engage in target practice on Sunday and to ‘bring their peeces to church’.
In 1658 it required every householder to have a functioning firearm within its household, and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so.
In Massachusetts, the first session of the legislative ordered that not only freemen, but also indentured servants own firearms, and in 1644 it imposed a stern 6 shilling fine upon any citizen who was not armed(1)
(1). W. Leo Skousen, ‘The Making of America’ pp. 696-697
The Second Amendment was the direct result of two provisions and the fear that the Federal Government would usurp the power delegated to it by the States. The anti-federalists vehemently objected to two provisions in the proposed constitution. First was the power of Congress to maintain standing armies in times of peace and second was total congressional control of the militia. Their fears of standing armies are expressed as follows:
.....it appears, that the evil to be feared from a large standing army in time of peace, does not arise solely from the apprehension, that rulers may employ them for the purpose of promoting their own ambitious views, by that equal, and perhaps greater danger, is to be apprehended from their overturning the constitutional powers of the government, and assuming the power to dictate any form they please(2).
(2) Ralph Ketchum, ed., ‘The Anti-Federalist Papers and The Constitution Convention Debates’ (1986; New York, Penguin), pp. 242-243
It is a historical fact that in nations where political leaders want to curtail the rights of people and take away their property and freedom, they always begin by trying to disarm them. This is usually done first by requiring them to register their firearms and imposing a heavy penalty on those who do not.
It has been determined that in many instances that the next step is to deliberately provoke widespread rioting and violence. The governance can then use this as an excuse to confiscate all firearms in the possession of private citizens and do it on the grounds ‘we have to somehow stop all this killing’.
In The Federalist, James Madison spoke of an ARMED CITIZENRY RESISTING OPPRESSIVE GOVERNMENT. (It should be noted this was almost four years before the ratification of the Second Anendment).
...(opposing the army would be) a militia amounting to near a half million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may we’ll be doubted, whether a militia thus circumstance could ever be conquered by such proportions of regular troops.(3)
(3) Michael Loyd Chadwick, ec, ‘The Federalists’ (1987, Springfield, Global Affairs) Essay #46, pp. 257-258
The fears expressed by the anti-federalists would lead to the adoption of the Second Amendment. During the state ratification process MA, NH, VA, NY and RI ratified the Constitution with a stipulation that their delegates in Congress ‘exert all their influence and use all reasonable and legal methods’ to obtain amendments. The proposed amendments clearly sought to protect the rights of the PEOPLE, not the militia, to keep and bear arms. As pointed out by Patrick Henry, the Constitution grants Congress exclusive authority to arm the militia [see Article I, Section 8, Clause 16] independent of any proposed amendment.
THE MILITIA
Many Americans do not even realize that they belong to the militia in their state. They confuse their state militia with the National Guard, which is a specialized reserve corps in which each state trains at federal expense for immediate service. Under Title 10, Section 31, of the US Code, the militia of each state includes ‘all able-bodied men at least 17 years of age and under 45 years of age who are or have [made] a declaration to become citizens’. (If Equal Rights Amendment had been adopted, this provision would have included all females between those ages).
Opponents of the Second Amendment have attempted to claim that the militia and standing armies are synonymous. Therefore the right to keep and bear arms is no longer necessary because the United States possesses the most powerful military force in the world. A little historical honesty on their part would dispel this myth. The militia is defined as follows:
‘The body of citizens in a state, enrolled for discipline as a military force but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army’(4)
(4) Henry Campbell Black, ‘Black’s Law Dictionary, 4th Ed.,’ (1968, West Pub., St. Paul) p. 1145
The militia was first and foremost a state military force loyal to their particular community and state. It remains as such until called into service by the United States.
‘The militia, until mustered into a United States service is considered a state force’ (5)
(5) John Bovier, ‘Bovier’s Law Dictionary’, Vol 2., (1870, Geo. Childs, Philadelphia.) p. 179.
LIMITED GOVERNMENT
The right to keep and bear arms was considered by the founding fathers to be an ‘inalienable right’ connected with the preservation of Life, Liberty and Property. Today Americans are the best-armed civilian population in the world. The number of private citizens owning arms is estimated to be around 50 million [~1995]. The number of firearms in the possession of private citizens is estimated to be between 159 and 200 million weapons [again ~1995]*.
- current estimates are expected to be higher ~2018; considering adjustments every 5-10 years
The Federal government is one of limited powers. Unlike the states, which can exercise every power NOT PROHIBITED, the Federal government can exercise no power beyond those SPECIFICALLY GRANTED. The powers delegated to the Federal Government are SPECIAL, NOT GENERAL. Thus, Congress is prohibited from passing laws just because it sees the need.
The application of these ‘Special Powers’ was addressed by James Madison in The Federalist:
“The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.”(6)
(6) The Federalist, supra, Essay #45, p. 252.1
Put quite simply, the Federal government was empowered to deal with external affairs while the States would concern themselves with domestic and internal affairs; Thomas Jefferson made this point in 1824:
“With respect to the State and Federal governments, I do not think their relations [are] correctly understood by foreigners (or Americans for that matter). They generally suppose the former subordinate of the later, but this is NOT the case. They are coordinate departments of one simple and integral whole. To the State governments are reserved all legislation and administration in affairs which concern their own citizens only; and to the Federal government is given whatever concerns foreigners or citizens of other states, these functions alone being made federal. The one is domestic, the other the foreign branch of the same government; having no control over the other, but within its own department. There are one or two exceptions only to the partition of power. (7)
(7) Maxfield, Cook and Skousen Eds., ‘Timeless Treasures from Thomas Jefferson’, Part II of ‘The Real Thomas Jefferson’ (1973, NCCS, Washington, D.C.) p. 434
The Second Amendment is not one of those exceptions. The right to keep and bear arms is a domestic, not a foreign issue. Therefore it would come under the purview of State jurisdiction, not Federal.
The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such individual rights’ interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself.
If in fact, the language creates a right protecting states only, there might be a reason for it to be inserted into the Federal Constitution, but no reason for it to be inserted in State constitutions.
States’ Bills of Rights necessarily protect only against action by the state, and by definition. A state cannot infringe it’s own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state’s’ own power would create an absurdity.
NO SUCH THING AS CONSTITUTIONAL RIGHTS
Contrary to the popular belief there is no provision in the Constitution or its amendments which grants any so called rights to the people of several states. The concept of ‘Constitutional Rights’ granted by government is a contradiction to the spirit of the Declaration of Independence, which states:
‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed....(8)
(8) complete ‘Declaration of Independence’ at appendix I.
The founding fathers made it very clear that the rights of man do not originate from government. The purpose of government is to secure these rights against encroachment by both the people and the government itself. If the rights of man originate from government and constitution, then those rights are subject to modification or abolishment based on the mandates of governments. Further, unalienable appears to mean ‘creator-given’ (born with, like your skin), so if ‘given’ by a creator, who is man to refute?
ORIGIN OF THE BILL OF RIGHTS
The Second Amendment is part of what is known as ‘The Bill of Rights’. The lack of a Bill of Rights was one of the leading objectives of the anti-federalists to the proposed Constitution. During the state ratification process, several of the State Conventions proposed the addition of a Bill of a Rights. The VA convention declared:
‘That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People....(9)
(9) ‘Documents Illustrative,’ Supra, p. 1028
In September 25, 1789, Congress proposed twelve amendments to the Constitution. The states ratified numbers three through twelve December 15, 1791. Those became known as the Bill of Rights.
The misconception surrounding the “Bill of Rights” can be traced directly to the American people being misinformed as to its true nature.
When the Bill of Rights was submitted to the states for ratification, it contained a preamble declaring its purpose. The preamble contained three paragraphs, but most, if not ALL editions of the Constitution include only the THIRD paragraph of the preamble to the Bill of Rights. The COMPLETE preamble is printed below as it appeared in 1789:
CONGRESS OF THE UNITED STATES
begun and held at the City of New York, on Wednesday the fourth of March, one thousand seven hundred eighty nine.
THE Conventions of a number of States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses be added. And as extending the ground of public confidence in the Government, will best ensure the beneficent ends if its institution.
RESOLVED by the Senate and House of Representatives of the United Stated of America, in Congress assembles, two thirds of both houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all, or any which Articles, when ratified by three fourths of said Legislature, to be valid to all intents and purposes, as part of said Constitution; viz.
ARTICLE in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislature of the several States, pursuant to the fifth article of the original Constitution.
The first paragraph reveals that the amendments were being proposed as a direct result of action taken in the state ratifying conventions. The declared purpose of these amendments is to prevent the Federal government from misconstruing or abusing its powers. To accomplish this, “further declaratory and restrictive clauses” were recommended. These amendments did not grant any such ‘RIGHTS’ to the people, but rather, placed additional PROHIBITIONS on the Federal government.
TEXT OF THE SECOND AMENDMENT
The Second Amendment declares:
‘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.’
ANALYZING THE AMENDMENT
It is important to note before analyzing the amendment, that the Bill of Rights did not amend any provision of the Constitution. Gun control advocates claim the second amendment applies to the right of the militia to keep and bear arms, not the people. The Constitution grants Congress exclusive power.
The Second Amendment would be redundant and superfluous if the interpretation being advanced by gun control advocates was correct. The Constitution specifically authorizes Congress to arm and regulate the MILITIA. Their interpretation is also in conflict with the resolutions passed in the State ratifying conventions which formed the basis of the amendments.
In his book, ‘A Familiar Exposition of the Constitution of the United States’ Joseph Story (Justice of the SCOTUS from 1811-1845) offered the following analysis:
“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.”(10)
(10) Joseph Story, ‘A Familiar Exposition of the Constitution of the United States’, (1859 Harper, New York), p. 319
Keeping in mind that the “Bill of Rights” does NOT grant Constitutional RIGHTS to the people, but rather, places PROHIBITIONS on the Federal government, the Second Amendment can be summed up as follows:
A well regulated militia, being necessary to the security of a free State, shall not be infringed by Congress and the right of the people to keep and bear arms shall not be infringed by Congress.
THE FEDERAL COURTS
The American people have been mistakenly led to believe that the Federal judiciary has the power to make and interpret the Constitution. The Constitution grants them no such power. Article I, Section I, declares that:
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Whenever the Federal judiciary attempts to make law through judicial decisions, it does so in violation of the Constitution. There is NO provision for the Federal judiciary to INTERPRET law. Alexander Hamilton writing the Federalist made this point very clear:
(It is alleged that) “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that if the legislature. The power of construing laws according to the ‘spirit’ of the Constitution, will enable courts
to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner to the revision or correction of the legislative body. This is as unprecedented as it is dangerous....But the errors and usurpations’ of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe laws according to the ‘spirit’ of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State....(11)
(11) The Federalist Papers, Supra, pp. 437-438
The anti-federalist were not convinced as shown on the writing of “Brutus” in Essay No. XI which appeared in the New York State papers in January 31, 1788:
‘That the judicial power of the United States will lean strongly in favor of the general government, and will give such an explanation to the Constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.’ (12)
(12) Ibid, p. 296
‘This power in the judicial, will enable them to mold the government into almost any shape they please.’ (13)
(13) Ibid, p. 298
Given the power of interpretation, the judiciary could subvert the Constitution and expand or modify the powers delegated to the Federal government. The principal of “limited government” would be meaningless if the judiciary possessed this power.
Recent ‘gun control’ legislation passed by Congress will result in numerous cases being adjudicated in the Federal Courts and under the constitutionality if these laws are challenged. This makes it more important than ever to understand the role of the judiciary:
In the case of United States V Butler, decided in 1935, Supreme Court Justice Roberts succinctly stated the function of the Federal Courts:
‘There should be no misunderstanding as to the function of this court. It is sometimes said that the court assumes a power to over-rule or control the actions of the people’s representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch has one duty - to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the later squares with the former. All the court does, or can do, is to announce it’s considered judgement upon the question. The only power it has, if such may be called, is the power of judgement. This court neither approves nor condemns any legislative policy. It’s delicate and difficult office is to ascertain and declare whether legislation is in accordance with, or in contravention of, the provisions of the Constitution; and having done that, it’s duty ends.(14)
(14) U.S. vs. Butler, 297 US I, 62 (1936)
Comparatively speaking, you might ask, “What about gun control to curb crime?” There are those who feel it would cut down on crime if there were federal law prohibiting the people from having certain types of guns. Senator Orin Hatch (R-UT) chairman of the Senate subcommittee on the Constitution, said:
“If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying...that they must sweep under the rug Southern attempts at gun control in the 1870-1910 period, the Northeastern attempt in the 1920-1939 period, and the attempts at both Federal and State levels in 1965-1976 - establishes the repeated, complete, and inevitable failure of gun laws to control serious crime.(15)
(15). W. Clean Skousen, ‘The Making if America’, p. 695
CONCLUSION
The key to understanding the Second Amendment rests in our system of limited government. The Federal government is a government of limited enumerated powers. Every power NOT granted is DENIED. There is no implied powers beyond those incidental to a power specifically granted. (16)
(16) See Art. I, Sec. 8, Cl. 18, the necessary and proper clause
The Bill of Rights was incorporated into the Constitution because the people of the several States demanded, as expressed in the preamble, important restrictions on the powers of the Federal government.
The Second Amendment is NOT a grant of legislative power, as is generally expressed, but rather a PROHIBITION or DENIAL of legislative power. Congress cannot lawfully exercise powers not granted. If a power is not granted, Congress is powerless to legislate. The same doctrine applies to the Federal courts. They posses no constitutional authority to adjudicate cases based on powers not granted to the Federal government. A RIGHT is NOT granted by THE CONSTITUTION.
Neither is it dependent upon the Constitution for its existence.
The Second Amendment has no other affect than to restrict the powers of the national government with regards to the people’s right to keep and bear arms.
A right is not dependent upon the Constitution.
“We the People believe, when people fear the government there is tyranny; when the government fears the people, there is liberty.”
~ Thomas Jefferson
