Particularly regarding the rights, duties and responsibilities of the Citizen to forestall the rise of tyrants, & disputing the validity of the matter of gun prohibition, together with an inquiry into the apparent enmity between the champions of the First and Second Amendments.
David Lance Goines
Work in Progress, begin November 12, 1992
Version of September 10, 1993
For my Grandfather
William Odus Burch
Who taught me how to shoot
and
My father
Warren Charles Goines
Who taught me how to think
"Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly; it is dearness only that gives everything its value." - Thomas Paine (1)
THE WORLD changes constantly; so much so that a lesson learned in the past isn't necessarily a useful lesson now. I'm not sure we can apply the errors of the past to enable us to act better. An understanding of the past might even cause paralysis. You see that nothing's simple; everything's interconnected; it's all relative; there is nothing that can be called truth. There is no truth at all, of any kind, about anything.
You start out as a child with exposure to a narrow environment, and the concept that there are right and wrong ways to live and act. You ask questions and you get answers. You ask, "Why is the sky blue?" and the teacher answers, "Because it reflects the sea." That's the answer. That is the truth. When you hear another answer, you're tempted to reject it as false, because, after all, how can there be two truths? Then you find out that your teacher was somewhat mistaken and you get confused. This is the beginning of wisdom.
By studying history you become aware that there are many explanations for everything and that they all are, if not precisely true, at least equally true. Even though one explanation may not be much good, is not therefore invalid. The "because it reflects the sea," answer may not tell you much about the sky, but it tells you a lot about your teacher. Even though one answer may be a good one, it does not invalidate the others.
In debates going on now about, say, the First Amendment, many of those who argue in favor of it tend to reject the other arguments in favor of it, not realizing that both can be perfectly true.
A fairly vigorous debate has arisen surrounding the Second Amendment, as well, and how it should be interpreted at the close of the millennium. People come up with "an" answer to these questions, rejecting all the other answers. They deny the other answer a voice. They won't listen to what the other person has to say. This is dimwitted.
The Framers of the Constitution and Bill of Rights had a lot of things in mind. They tried to include as many of them as possible, without excluding things that they hadn't thought of, or that hadn't happened yet, but might. They were inclusive, rather than exclusive.
The Framers recognized one great truth, and left all the little truths to look after themselves: the Bill of Rights did not create the rights that it outlines. The Bill of Rights recognizes and discusses, guarantees and protects certain rights, but it did not call them into being. Even if the Bill of Rights did not exist, or if it were repealed, or if it were so circumscribed by law and judicial opinion as to become meaningless, the rights would nonetheless exist undiminished. They would merely be accorded no official protection.
The First Amendment guarantees that the government will not interfere with your right to speak out against injustice or to worship God. That right existed long before there was a First Amendment, or even a State. Without that right, there could be no just government. Government is just in direct proportion to the amount of free speech people have, and the lack of official interference with matters of conscience.
The Second Amendment does not create the private right to keep and bear arms. It recognizes the pre-existing right and enumerates one good reason for it, without implying in any way that other such good reasons do not exist. You have a right to protect yourself from criminals, both public and private, and you have a right to the means of protection. You have a right and an obligation to come to the need of the State, risking your life and property if necessary. You have a right to purge the State of tyrants, by force if necessary. That is, after all, what the Founders of our nation actually did, and they did not do it with hard words or their naked fists. All these reasons are good reasons, and two, or three, or four good reasons do not ever add up to only one good reason.
There are a lot of reasons why people should have privacy. There are a lot of reasons why people must be able to speak and write and read whatever they want to. There are a lot of reasons why your sexual affairs are nobody's business but your own; what; with whom, when or where. There are a lot of reasons and they're all correct, and none of the reasons excludes the others.
There are many explanations for everything. I guess that's the main thing I've learned so far-that there are myriad right answers, and they're all right.
I enjoy target shooting, which is the pleasant pursuit of turning money into noise. It's not quite as much fun as shooting tin cans off a fence post, but we do live in the big city. I'm not as good a shot as my dear mother, nor yet as good as her father, who was a paragon, but with time I may improve. We Goines' have a long tradition of keeping the means for resistance within easy reach. In 1717 the Crown took away my first American ancestor's land, with the excuse that he was "a Negro, and consequently not a citizen." By 1834 the Free Colored citizens of most Southern and many Northern states had lost all their civil rights, including the right to keep and bear arms. My ancestors did not agree that they should become second-class citizens, and went into the hills, guns, dogs, children and all. It then became a simple matter of just how serious the State was in its desire to enslave them. You will not be surprised to hear that representatives of the State found themselves in some doubt on the matter when vigilantes, militia-men and soldiers went into the hills and did not come out again. We used them for fertilizer. If you think it can't happen here and now, you've got another think coming. Look at Waco. My ancestors did not fight and shed their life's blood for my rights so that I might blandly surrender them to fools and demagogues.
"Who's going to catch us? We're the police. We're in charge." - Bernard Cawley, New York Police Force (2)
PEOPLE go to church because they already believe what the preacher is saying. Their attendance is more along the line of reinforcing a conviction that what they already think correct are opinions shared by others. Not too many go in the front door as heathens and come out when the service is over as Episcopalians.
The American Civil Liberties Union Newsletter reaches an audience of people who have joined the ACLU because they already agree with its goals. Members of the National Rifle Association get monthly comfort from American Rifleman magazine, which is addressing an audience already persuaded and doesn't really need much beyond the occasional refresher course in the basic ideology. These publications are preaching to the choir.
Think of me more as a streetcorner evangelist. This essay is not aimed at those who already agree with my contention that the Second Amendment of the Constitution guarantees individual citizens the right to keep and bear arms. I'm after the ones who don't agree, or who have no clear opinions on the subject, but feel a vague sense of unease when the matter comes up.
The Second Amendment to the Constitution is part of a fabric of rights that depend utterly, each on the next, for the integrity of the whole. Weaken one, and you weaken all. Strengthen one, and all gain vigor.
Our system of government depends upon a balance of powers, not only among the tripartite administration, not only between the several states and the federal authority, but between the governed and the government. Its bulwarks are in the First and Second Amendments. The people have a right to criticize their government, and to replace it-severally or collectively-if necessary. This makes the government responsive to the needs of the people. In non-democratic political systems, the rulers are isolated from the citizenry. The pain of the people is rarely the pain of the ruler, and since the ruler does not starve in the famine, or get shot in the war, or suffer abuse at the hands of the police, the ruler has no incentive to care about the needs and desires of the people. In a democracy, the people can take the government to task, thus providing it with a genuine incentive to accede to their demands; to listen to their needs; to follow their suggestions.
The ballot is the strength behind our free press. The press keeps us informed of government activity, and if the people are displeased with their elected and appointed officials, when election time rolls around, they can replace them. But what, you might ask, is the strength behind the ballot? Ballots are only made of paper, and if the government really, truly, chooses to ignore them-to break the law-then what?
We live in a society of law. Few, if any, nations have a written constitution that binds all parties in the manner of our Constitution. The Constitution outlines the duties and responsibilities of all parties-federal government, states and private citizens-to one another, and spells out how the balance is to be maintained. This ultimate law was intentionally made exceedingly difficult to change.
Most laws contain an "enabling clause." That's the part of the law that isn't the law itself, but which says, "we have the ability to enforce this law." As far as we private citizens are concerned, the "enabling clause" of the Bill of Rights is the Second Amendment. The Second Amendment provides for a right of the people themselves to do three main things. First, to defend their lives and property from those who would do them harm. Second, to come to the assistance of the State in time of need, and third-and this is the "enabling clause," to throw off, by force of arms if necessary, a tyrannous government.
Those who would weaken the right of Americans to posses, carry and use guns should appreciate that if they succeed, they will in the same act diminish a vital safeguard of citizen rights.
Those who believe that America will be a safer, pleasanter place if that right is diminished should carefully examine the actual causes of crime and violence, and appreciate that these causes are in no meaningful way connected with the presence or absence of arms among the people.
Those who believe that other nations-England, Canada, or Japan-have a program of gun prohibition that we might profitably emulate, should also understand that all other citizen rights in these nations are weak in direct proportion. They might keep in mind that if First Amendment rights, or the right to trial by jury, or the right to counsel, or freedom of religion, were being discussed, they would likely find the policies of these nations reprehensible. They would not be pleased to hear that these nations either do not have a constitution in any proper sense, or do not pay any attention to its provisions. They would not caper with joy to find that every single right that they hold precious has been nibbled away, or did not exist in the first place, or is in the process of erosion to the same, exact degree as the right of the citizen to keep and bear arms. (3)
The future of our nation is not certain. Paths diverge in ways that we cannot foresee. Actions have consequences that we cannot predict. We have the oldest Constitutional democracy in the world. It provides for a tremendous degree of freedom, and accepts a tremendous degree of risk. It entrusts the people with power that no other government will tolerate.
Let those who would trifle with the magnificent machinery of our Republic take care that, by their ignorant meddling, they do not destroy the whole.
You Say You Want a Revolution?
ON October 26, 1774, the First Continental Congress met in Philadelphia to consider its response to "Intolerable Acts," imposed by the British colonial authority. The fifty-six delegates, representing every shade of political thought to be found among the American colonies-from the utmost conservatism to those of the radical firebrand-passed ten resolutions enumerating the rights of the colonists and their assemblies. But, the colonial reaction was not confined to empty talk:
This is the most magnificent movement of all! There is a dignity, a majesty, a sublimity, in this last effort of the patriots that I greatly admire. The people should never rise without doing something to be remembered-something notable and striking. This destruction of the tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important consequences, and so lasting, that I can't but consider it as an epocha in history! - John Adams, Diary [on the Boston Tea Party, December 17, 1773]
In response to the Boston Tea Party the British Parliament dispatched General Thomas Gage, together with 4,000 troops, to the New World. General Gage was made Governor of Massachusetts, and his troops were quartered on the populace.
Anticipating armed rebellion, the first move that General Gage made was to capture or destroy hidden stores of patriot guns and powder, and to arrest John Hancock and Samuel Adams. On the night of April 18, 1775, Paul Revere, Billy Dawes and Samuel Prescott rode to warn the Lexington Minutemen that seven hundred British troopers were crossing the Lexington River, headed for Concord, to capture a rebel arsenal. On their way to Concord, Revere and Dawes were arrested and held, but Prescott managed to escape. In Lexington, seventy-seven Americans gathered on the village green to confront ten times their number. As the British approached, the Minutemen opened fire; the British responded, and in the resulting skirmish eight Americans were killed. Meanwhile, Prescott had managed to carry the warning to Concord, where ringing churchbells called farmers and townspeople from their homes. The Concord militia attacked a troop of British soldiers holding a bridge leading into the town, and from positions behind trees, stone walls, houses, barns and hillocks of earth, poured a withering fire into the British ranks. The British retreated to Lexington, where they were met by reinforcements. On their return to Boston, the British troops were harassed constantly by colonial snipers and suffered heavy losses.
The purpose of these hidden munitions, arsenals and secret hordes of powder and shot that General Thomas Gage so urgently sought, was to enable the American colonists to throw off the intolerable yoke of an unjust, incompetent, rapacious and punitive government.
What is a Right?
Inalienable rights are those of which a man cannot divest himself by contract; which he may not, under any circumstances, lawfully demit; but he may forfeit them by crime, and be wrongfully deprived of them by others - Mark Hopkins, lecture, Lowell Institute, Boston, 1862
THE Constitution outlines two kinds of citizen rights, one natural and the other arising from society. Natural rights are those that come with the condition of being human. These are the rights to life, liberty and the pursuit of happiness. All people have a right to these things, and by implication, a right to resist infringement upon them.
A natural right, as it is understood in the Constitutional sense, can neither be conferred nor withdrawn. It is innate, axiomatic, a thing that can only be recognized or ignored. The Framers of the Constitution and Bill of Rights did not conceive of themselves as creating, but rather as guaranteeing, natural rights which they derived from the English tradition of Common Law. The two most important rights, considered the cornerstones of a free people, were the right to own property and the right to keep and bear arms.
Political rights are those which do not come with the condition of humanity, but which are a function of living in human society. These rights are more problematic, and the Constitution spent a good deal of time outlining them.
The right to vote, or have a trial by a jury, or to be able to post bail, or to bring a suit at law-these are not rights that are innate. These are rights which have been established over a period of time, and which the Framers of the Constitution believed would make for a just and healthy nation.
Therefore, when we talk about rights, we are actually talking about two kinds of rights, which over time have become somewhat intermixed. However, when push comes to shove, we get back to the basics: we have a right to live, and a right to defend ourselves against anyone who would take our life from us. We have a right to freedom, and a right to resist anyone or any institution that would enslave us. We have a right to own property, and to enjoy the fruits of our labor. We have a right to protect our property and to keep it if someone tries to take it away unjustly or illegally. These are the natural rights that are protected by the Second Amendment.
The political rights that are enumerated throughout the Constitution were deemed by the Founders to be essential for the protection of the natural rights. The right to vote is a simple, non-violent weapon which in the hands of a well-informed, free electorate will prevent most injustice. Our whole Republican form of government is a weapon against tyranny. Freedom of speech will keep the electorate aware of what the government is doing. Freedom from a State religion is a right that will prevent a terrible amount of social friction. All the political rights are calculated to protect the natural rights, and to forestall the rise of tyranny and the consequent destruction of our nation. Once political rights are acquired, they become part of the underpinnings of natural rights.
Since the first ten amendments to the Bill of rights were added to the Constitution, we have continually enlarged the concept of political rights. Rights can expand, but they cannot contract. With rights, as with living things, it's grow or die. Or, as Gibbon said, "All that is human must retrograde if it does not advance." (4)
At the time of the American Revolution, the American of Black African ancestry existed in some doubt as to his rights to full citizenship. (5) When the Fourteenth Amendment was passed, he cast off forever any doubt that he was a full citizen with all rights, duties and privileges of that condition. Even though these rights were not acknowledged within the original Constitution, they exist now, and Black Americans are not going to lose the right to vote, to own property, to resist enslavement. If anyone were to attempt to infringe upon or withdraw any of these rights, Americans of Black African ancestry-even though their grandfathers and great grandfathers did not enjoy any of the rights of citizenship-would have a right to appeal to all possible resources under the law and, those failing, to resort to force of arms.
The concept of both natural and political rights as inalienable is contained in the Pennsylvania Declaration of Rights of 1776, which enumerates "certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." And a real effort was made to carve these rights in stone. Section 46 of the Pennsylvania Constitution provided: "The declaration of rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretense whatever." (6)
Much of what American Colonial thinkers conceived of as "natural rights," and "natural law," derives from De Iure Belli ac Pacis, a comprehensive work on the law published in 1625 in Paris by Hugo Grotius.
Another important source for the concept of rights is found in the seminal thinking of In The Leviathan, Thomas Hobbes outlined significant legal concepts, and discussed the concept of rights at length. Hobbes posits a state in which the welfare of society-safety and civil order-are paramount. The only right that Hobbes concedes is the right to self-defense, which he argues cannot be given, bargained or taken away.
Rights, therefore, can be divided into the two classes of natural and social. A further definition of rights can be made according to the means by which they are obtained.
A natural right is inborn. It can be recognized or unrecognized, but it exists and may be appealed to regardless of other circumstances. A natural right can neither be taken or bestowed, nor can it be surrendered voluntarily or unwillingly. A natural right is inalienable.
A right can be granted, but by the same measure, so can it be withdrawn. The right to own property, for example, exists at the sufferance of the State and may be restricted, altered or taken away entirely as it serves or impedes the welfare of the State. If an individual is said to own property, this is a semantic distinction which does not actually explain the relationship of the owner to the rest of society. The State may tax the property and take it away if the tax is not paid. The State may define who may and may not own property, and closely legislate what may be done on and with it. The State may narrowly control the buying and selling of property, and prohibit some transactions and require others. Thus, it might be said that there exists-and in this Hobbes fully agrees-no actual right to own property at all, but that the citizen holds property in trust for the good of the State. If the good of the State conflicts with the desires of the citizen, the State takes precedence.
A right may be won, or lost. Such rights as are won require unceasing vigilance for their preservation, as by their very existence they are a continual challenge to the sovereignty of the State. The First Amendment enumerates rights that were created and maintained by conflict between the citizen and the State. Such rights wax and wane, according to the times and the circumstances. Hobbes did not accept the validity of such rights, as they threatened public safety.
The simplest definition of a right is that it is no more than what you can get and hang onto. There are in reality no such things as inalienable rights, as demonstrated by the simple fact that they are alienated all the time all over the place. Might, in no small sense, makes right, and the prudent citizen is well advised to be sure that he retains as much might-both political and physical-as he possibly can. No person or institution takes anything away if it entails more risk than the confiscation justifies.
The concept of certain rights as axiomatic, that is, a universally recognized, self-evident truth, for which no proof is necessary, does not originate with political thinkers like Thomas Hobbes or John Locke, but they do find themselves in the position of having to find some inalienable attribute of even the most primitive human, within or outside society. The rights that they at length conclude are axiomatic are those that they feel can neither be conferred nor withdrawn. They cannot be given up, and even the meanest slave or most backward savage possesses and enjoys them to the same degree as the monarch or wealthy citizen. Thomas Hobbes, who concedes absolutely nothing in the way of rights or liberties of the individual, nonetheless admits of the right to self-defense:
For not every fear justifies the action it produceth, but the fear only of corporeal hurt, which we call bodily fear, and from which a man cannot see how to be delivered, but by the action. A man is assaulted, fears present death, from which he sees not how to escape, but by wounding him that assaulteth him; if he wound him to death, this is no crime; because no man is supposed at the making of a commonwealth, to have abandoned the defense of his life, or limbes, where the law cannot arrive time enough to his assistance. (7)
Hobbes qualifies this with the caveat of obligation to seek assistance and not to take the law into one's own hands,
But to kill a man, because from his actions, or his threatenings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Sovereign Power,) is a crime. (8)
John Locke finds that freedom of conscience and the freedom to worship God as one sees fit, are axiomatic:
... no man can give another man power (and it would be to no purpose if God should) over that over which he had no power himself. Now that a man cannot command his own understanding, or positively determine today what opinion he will be of tomorrow, is evident from experience and the nature of the understanding, which can no more apprehend things otherwise than they appear to it than the eye see other colors of the rainbow than it doth, whether those colors be really there or not. (9)
Religious worship being that homage which I pay to that God I adore in a way I judge acceptable to him, and so being an action or commerce passing only between God and myself, hath in its own nature no reference at all to my governor, or to my neighbor, and so necessarily produces no action which disturbs the community. (10)
From what is premised I think will follow:
1. That in speculations and religious worship every man hath a perfect, uncontrollable liberty which he may freely use, without, or contrary to the magistrate's command, without any guilt or sin at all ... (11)
What we have here presented as axiomatic, inalienable rights are, of course, the very foundation stones of the First and Second Amendments.
What is the Distinction Between a Right and a Power?
Governments are instituted among Men, deriving their just powers from the consent of the governed.
The government has powers. Citizens have rights. The government may confer powers on specific citizens, such as policemen to act as its agent. The government may not, however, confer rights. Citizens grant powers to the government, but government has no rights, except against other branches of itself.
What is the Law?
MY understanding of Anglo-Saxon law is that at its center, it is not capricious. It is based on three profound traditions: precedent, written rules, and rhetorical conflict.
It derives, ultimately, from the Babylonian tradition of formal legal contracts-a system of the utmost antiquity, antedating writing itself by a good five thousand years. (12) The concept of written laws arose from these contracts and disputes concerning them. From this tradition, in turn, springs the Judeo-Christian tradition of encoded law, to which all who would do right refer, and by which actions are judged as correct or incorrect. The third leg upon which our system of laws rests is the adversarial concept. This is the very center of our own legal system. It pits champions against one another before an impartial judge, and derives from the rhetorical devices of the ancient Greeks.
Written Law and Judgment are Based on Precedent
THE code of Hammurabi marks the departure from tribal custom administered by the headman. The Babylonians relied on an actual written set of rules, to which all, without regard for class or status, were compelled to turn for justice. It was the law of the State, not the family or tribe, arising out of the ancient concept of the written contract. The center of the written law was precedent: tens of thousands of contracts and litigations stored in the temples over thousands of years. The law was administered by judges and appeal was allowed.
The Bible, that cornerstone of American thought, presents the identical transition from headman administering tribal justice to formal judge administering written law. As tribal leader, Moses handed down judgments among the people, each verbal case tried individually, based upon oral tradition and custom alone:
Exodus 18: 13-20 And it came to pass on the morrow, that Moses sat to judge the people: and the people stood by Moses from the morning unto the evening
And when Moses' father in law saw all that he did to the people, he said, What is this thing that thou doest to the people? why sittest thou thyself alone, and all the people stand by thee from morning unto even?
And Moses said unto his father in law, Because the people come unto me to enquire of God:
When they have a matter, they come unto me; and I judge between one and another, and I do make them know the statutes of God, and his laws.
And Moses' father in law said unto him, The thing that thou doest is not good.
Thou wilt surely wear away, both thou, and this people that is with thee: for this thing is too heavy for thee; thou art not able to perform it thyself alone.
Hearken now unto my voice, I will give thee counsel, and God shall be with thee: Be thou for the people to God-ward, that thou mayest bring the causes unto God:
And thou shalt teach them ordinances and laws, and shalt shew them the way wherein they must walk, and the work that they must do.
Moses listened to his father in law, and at his earliest opportunity went up to Mount Sinai where he got clear, simple, written laws from God, conveniently carved in stone for future reference:
Exodus 24: 12 And the Lord said unto Moses, Come up to me into the mount, and be there: and I will give thee tables of stone, and a law, and commandments that I have written: that thou mayest teach them.
Absolutely none of this was lost on the Framers of the Constitution. The original ten Amendments to the Constitution are the verso of the tablets handed down to Moses from Mount Sinai: the ten "Thou Shalt Nots" from God to the people are mitigated by the ten "Thou Shalt Nots" from the people to the State.
The Oresteia of Aeschylus (525-456 BC) is a tale of the transition from the family as the fundamental social structure, and private revenge as a means of redress, to the ascendance of the State and submission to formal law. The build-up is contained in the first two plays of the tragic trilogy, Agamemnon and Choephorae, and is resolved in the Eumenides, in which the Furies are transformed from private gods, avengers of family wrong, into public gods and protectors of the State.
The real lesson of the Eumenides is clearly that the old law of blood incessantly crying for more blood, which hitherto had been thought inescapable, must be superseded, and that Athens, mother of civilization, is the natural sponsor of the higher code. Converted by Athena, the avenging Furies change their nature and become well-disposed. (13)
. . . with their ancient office (the protection of the sacredness of the blood tie) not abrogated . . . but enhanced, since thenceforth they will punish violence within the polis, not only within the family. (14)
The Adversarial Tradition
THE Western adversarial tradition stems from the Ancient Greeks, who discovered the power of language as creator of reality. They had trouble with the idea at first, as we still do. The charge against Socrates, for which he was sentenced to death, was that he made the weaker argument appear the stronger, and corrupted the youth.
Roman law was based on the Greek tradition of two skilled orators publicly arguing a case before judges. The speaker with the best argument won. Similarly, "the American criminal justice system, like the American political system, expects that justice will arise out of the conflict between various independent authorities." (15)
Two contending attorneys duke it out under the watchful eye of a judge. A jury decides who made the better case, and the stronger argument carries the day.
Our entire system of government is based on the adversarial concept. Each part of the government is pitted against the others, all keeping watch over all. The executive, legislative and judicial vie for power, each kept from taking over by the jealousy of the other two. The people and the government itself are also at constant odds, each trying to wrest the most power from the other.
This adversarial tradition is central to the way we thrash out how our society is to operate. The Second Amendment is a vital buttress of this tradition, giving the people real power against the State.
Our nation has a long history of bitter dispute over basic legal, political and social issues. Most of the time we've managed to work it out through public debate. The current dispute over interpretation of the Second Amendment falls within this fine old tradition, and this paper is part of the bloodless fray.
This is how our society works, and we like it that way. Other societies are different, and their ways work fine for them. When we look at other cultures and admire or dislike one part or another, we must be careful to remember that we can't take one aspect out and examine it in isolation, any more than one part of our own culture can be praised or condemned without considering the whole.
The Constitution is a Written Contract
THE Constitution is a written contract between the State and the citizen. The actual blackletter of a contract is not generally set aside in favor of later or different interpretations. The Constitution is not a suggestion of how things might be under ideal circumstances, or a starting-point for negotiation.
Contending parties may agree to re-write the contract, but one side may not do so unilaterally and expect the other party to continue to abide by its conditions. Usually, when one party violates the letter and spirit of a contract, the other party may consider the bargain void, and negotiate for a new and better contract. This is exactly what the Declaration if Independence is: the formal refusal to abide by a contract that has been abrogated by the other party, and a demand for a new relationship. Just listen to the language:
When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. . . . But when a long train of abuses and usurpations, pursuing inevitably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
This is the aggrieved party saying, "you broke your side of the contract." Then, the various transgressions are enumerated:
To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good. . . .
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. . . .
He has affected to render the Military independent of and superior to the Civil Power.
And so on and so forth. The Declaration goes on to indicate that the injured party has made a bona fide effort to come to the table, but has been snubbed:
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.
It ends with the statement, "the deal is off."
We, therefore, . . . solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be dissolved . . .
There. Now that's the way to dissolve a contract.
By 1790 a contract between the original colonies and their new government had been drawn up and agreed to. All that remained was to append the theretofore neglected contractual statement that outlined the relationship of the private individuals who made up the States to their government. What is expected of the citizen? What can the citizen expect from the State? What happens if there is a disagreement? What happens if there is a really serious disagreement? What guarantee does the citizen have if the State violates any part of its bargain? What powers does the citizen retain to ensure the fidelity of the State?
This enumeration of citizen rights was added to the Constitution in 1791.
Why do We Have a Written Constitution?
It has been often doubted too, whether a written constitution has any superiority over one unwritten. This is a point of comparison between the English constitution, and that of Virginia. An unwritten constitution can, upon the appearance of a defect, be amended, without agitating the people. A written one is a standing ark, to which first principles can be brought on to a test. Whatever merit is due to either opinion, it should not be forgotten, that the sprit of a people will in construction frequently bend words seemingly inflexible, and derange the organization of power. - Edmund Randolph, "Essay on the Revolutionary History of Virginia" (circa 1809-1811) (16)
THE precept of democracy is that of individual accountability within the framework of law. The Framers of the Constitution were well-educated men. They were steeped in the Classics, from which they derived an ideal of society.
The citizens of Athens devised a new system of government that looked to the citizens themselves. Democracy, or "rule of the people," worked reasonably well in the small city-states, but eventually broke down into "ochlocracy" or "rule of the mob." The flaw of the Athenian system lay in the ability of the assembly to make or change the very structure of law on a whim. (17)
In the Republic Plato warned, "Democracy passes into despotism." (18) What Plato meant by this was that if the people were all-powerful, the whim of the moment could persuade them to unjust, ill-considered acts which would in short order create chaos. The resulting anarchy would cause the citizens to demand safety and order, to effect which they would elect or create a dictator. The dictator would make it his first order of business to destroy his only real enemy, the aristocracy. This accomplished, he would created and maintain a standing army, by which to enforce his will. Once in the hands of the dictator, there would be no escape. This, in short, is exactly what happened to Rome.
The democracy of our fledgling Republic recognized this danger, and compelled all democratically-arrived-at decisions to the scrutiny of a higher law-the Constitution-which was intentionally made extraordinarily hostile to tampering.
The English "constitution," on the other hand, is largely unwritten. It depends upon precedent modified by a constant process of interpretation. Much of the constitution is no more than legal history, that is to say, it has been developed by the courts as part of the general body of common law. Though this flexibility may be considered a virtue, the fact that there is no written reference allows the British parliament to commit the errors of the ancient Greeks. Parliament is supreme, with no check or limitation save what can be found in precedent.
What Can and Cannot be Done by Those Who Disagree with the Law
INTERPRETATION of the law relies on precedent: how has the law been applied in the past? What were the intentions of the lawmakers themselves?
Americans who dislike guns, for whatever reasons, are welcome to dislike guns as much as they please. They may not, however, entertain the conceit that their dislike of guns provides a sound basis for infringement of a fundamental Constitutional right. They may not cite the way things are done elsewhere as a sound basis for interpretation of the Bill of Rights. They may not pick out one part of the Second Amendment that they like and let the rest go where it may.
Those who most strongly favor gun prohibition must reconcile the legal precedent for the Second Amendment, as well as the legislative intent of the Framers of the Constitution, with their desire to see the American people deprived of arms. I do not believe this is possible. Their only recourse is the repeal or re-writing of the Second Amendment, in which I wish them the joy of their endeavor.
"As Mr. Justice Frankfurter noted in reference to criticism of the privilege against self-incrimination as an obstacle to the needs of law enforcement in an era of rampant crime: 'If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.' " (19)
Arma virumque cano.-Virgil, The Aeneid, Book One, line 1. (20)
OUR Founding Fathers based many of their decisions on how to organize the new nation's government on the examples of Ancient Greece and Rome, and the historical example-provided to the Colonial citizen by Edward Gibbon's (1737-1794) Decline and Fall of the Roman Empire-of gradual destruction of the Roman Republic. When discussing the intent underlying the Constitution and Bill of Rights, we must consider the examples of Athens and Rome, and realize that the loss of freedom and rise of dictators were of the utmost concern to the classically-educated framers of our early government. Our Founding Fathers took pains to avoid repeating the errors of the Ancient Greek and Roman Republics. They believed that with the fall of the Roman Empire, mankind slipped into a slough of darkness, only gradually to emerge into the daytime of the Enlightenment. They intended to do everything in their power to prevent such another decline of Western civilization.
Aristotle-the author of the Athenian Constitution-warned, in Politics, that a characteristic of tyrants was "mistrust of the people; hence they deprive them of arms." (21)
The Founding Fathers were familiar with the myth of Prometheus, creator and friend of Mankind. When Zeus, the king of the gods, resolved upon destroying the human race and replacing them with other beings, Prometheus alone concerned himself with their fate. He stole fire from Olympus and brought it in a hollow reed to Mankind, thus conferring on his creatures the power to resist the tyrant Zeus.
The parallel between fire in a hollow reed and firearms in the Second Amendment is so obvious that I scarcely need draw it. The framers of the Constitution knew that the people needed a defense against an otherwise all-powerful State. Not merely a bulwark of words, as provided for in the First Amendment, but one of action, as well. Without the Second, the First is "bricks without straw." (22) Weak, liable to crumble, likely to wash away.
English Antecedents for the Second Amendment to the Bill of Rights
DURING and after the Revolution, the loosely allied States were governed by the Continental Congress under the Articles of Confederation, which delegated severely limited powers to the central government, and reserved the rest to the states. The lack of central authority, combined with economic chaos and political confusion, spurred the call for a convention to consider a new form of government. On September 17, 1787, a new Constitution was drawn up, and was ratified by all the States of the Union by May 29, 1790. The Constitution outlined the machinery of government, defining the relationship of the central government to the Several States, and of the States to each other, but did not address the issues defining the relationship of those governments to their individual citizens. To remedy this, the first Ten Amendments to the Constitution were adopted in 1791. They were patterned on the British "Bill of Rights," of 1689, which we should examine before proceeding.
The Declaration of Right
A cornerstone of English Constitutional history, the Declaration of Right-known also in England as the Bill of Rights-is not as well known as it might be. On the 13th of February, 1689, a committee of the Commons presented these fundamental principles of Constitution to the prince and princess of Orange, afterwards William III and Mary. This "Act Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown, for the vindicating and asserting their ancient rights and liberties" is remarkably similar to the American Bill of Rights, for which indeed it provided the model. Its seventh provision-heavily circumscribed and religiously biased though it may be-is undoubtedly the immediate ancestor of our own Second Amendment, and the strong foreshadowing of other elements of our Bill of Rights is plain to see.
The first part of the statute listed the abuses of Charles II and James II:
(5) By raising and keeping a standing army within this kingdom in time of peace, without the consent of parliament, and quartering soldiers contrary to law.
(6) By causing several good subjects, being Protestants, to be disarmed at the same time when papists were both armed and employed contrary to law.
The second part of the Bill of Rights "created laws to prevent recurrence of the abuses. It affirmed that the right to bear arms (like other rights) was not being created or granted by government, but had always been a traditional right of Englishmen:" (23)
(1) That the pretended power of suspending of laws or the execution of laws by regal authority without consent of parliament is illegal.
(2) That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.
(3) That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.
(4) That levying money for or to the use of the crown, by pretense of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal.
(5) That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.
(6) That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
(7) That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law.
(8) That elections of members of parliament ought to be free.
(9) That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.
(10) That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
(11) That jurors ought to be duly impaneled and returned and jurors which pass upon men in trials for high treason ought to be freeholders.
(12) That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void.
(13) And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliament ought to be held frequently. And they do claim, demand and insist upon all and singular the premises, as their undoubted rights and liberties.
The Magna Carta
ANTICIPATING this document, and of equal if not greater importance in the history of rights of individuals as against the State, is the Magna Carta, granted on the 15th of June, 1215 at Runnimede by King John, surnamed "Lackland" (1167-1216), to the English people. These are laws that the king himself must obey. The king signed them at sword's point, not at all happy about it. The king reneged on his bargain, and by force of arms was compelled again to treat with his subjects. He died-tradition has it that the cause was a surfeit of peaches-on the 19th of October, 1216. In the main, the Magna Carta is concerned with money, and the various rotten ways that Bad King John was squeezing the people to get it. Incidentally, it delves into matters of administration of justice, and outlines the ideals of good government.
The Magna Carta contains three significant contributions to our concept of government: first, that the king could not levy taxes without the consent of a representative of the people. Second, that he could not imprison a free man or deprive him of his property except by the judgment of that man's peers or the law of the land. Third, it contains the exceedingly important idea that the king is not above the law, and may be compelled to obey it by the same means that any other person is compelled to obey the law: by force.
This third concept is contained in Chapter LXI, which provides for the execution of the royal promises, and what is to happen if the king does not abide by them.
LXI: Inasmuch as, for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,-wishing them to enjoy for ever entire and firm stability, we make and grant to them the following security: that the barons, namely, may elect at their pleasure twenty five barons from the realm, who ought, in all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, or our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken some one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us, or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us every way in their power,-namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judgment. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to swear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,-the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all of the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will cause them to be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another. (24)
This chapter creates a committee of barons, to which, if the king or any of his servants do something wrong, complaint may be made. The barons, in turn, are to make complaint to the king. If within forty days the wrong is not redressed, the committee of barons has the power to seize land and property of the king, or to obtain justice in any other way possible. They must not, however, kill the king, the queen, or their children. As it happened, this clause was required immediately.
In granting the citizenry the right to force the king to respect and obey the law, Chapter LXI comes very close indeed to our Second Amendment. There is a reason that this clause is in the Magna Carta: without it-without the underpinning of force of arms-the entire document would be "a scrap of paper." (25) The Second Amendment is in the Constitution for a similar reason.
Blackstone as Interpreter of English Common Law
WILLIAM Blackstone (1723-1780), through his Commentaries on the Laws of England (1765), became the arbiter of English common law. His work was intimately familiar to every Colonial jurist. He was a great admirer of the Magna Carta, and through him its principles were elucidated and discussed in Revolutionary times. (26)
Blackstone conceded that the rights that the barons claimed for themselves, they claimed for the nation at large. Thus, the Magna Carta was regarded by the Framers of the Constitution as giving equal rights to all Englishmen. At the time of the American Revolutionary War, we were Englishmen, too.
Blackstone specifically discussed the right of "the subject," by which he meant any Englishman, to have arms for his personal defense as well as to resist "the violence of oppression."
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2. and is indeed a public allowance, under due restriction, of the natural right of resistance and self-preservation, when the sanctions of society are found insufficient to restrain the violence of oppression. (27)
In his May 13-15, 1776, notes of the debates of the Continental Congress John Adams quoted a Mr. Wilson citing the precise section of the Magna Carta as justifying the rebellion:
In Magna Charta, there is a Clause, which authorizes the People to seize the K[ing]'s Castles, and opposes his Arms when he exceeds his duty.
The appeal-all else failing-contained within the Magna Carta to force majeure is exactly what the Second Amendment is all about. Lacking this ultimate resource-the physical capacity to compel a wayward government to hearken and act as the people demand-the balance of the Bill of Rights means nothing.
Legislative Intent Behind the Second Amendment
DEBATE surrounding the adoption of the Second Amendment is noteworthy for its scarcity. Two quite contrary conclusions may be drawn from this: one, that it was of no great importance, added as an afterthought, just something to be gotten through. Another, and more likely explanation, is that the Framers were in such profound accord on this matter that debate was entirely unnecessary.
But, a reliable index of intent can be gleaned from what the Founding Fathers said and wrote about guns.
Amateur gunsmith Thomas Jefferson had a handsome collection of pistols and long guns, and wrote to his fifteen-year-old nephew, "A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives moderate exercise to the Body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion on your walks." (28)
I must say that it pleases me no end to imagine the reaction that the anti-gun thinker must have when he is compelled to accept that the men who framed the Constitution were near to religious in their reverence for firearms. They thought guns were swell, and went on and on about the contrast between America and degenerate Europe and England where the leaders were "afraid to trust the people with arms," and that Americans need have no fear of their own government because of "the advantage of being armed, which the Americans possess over the people of almost every other nation." (29)
As Jefferson said in a letter to George Washington, "One loves to possess arms." (30) George Washington seems also to have loved to possess arms, for he had a collection of fifty, and in his own writings he talks about them frequently in the most laudatory terms. (31)
James Monroe believed that "the right to keep and bear arms" was a "basic human right" that he proposed be amended into the Constitution. (32)
Patrick Henry said, "the great object is, that every man be armed. . . . Everyone who is able may have a gun." (33) Patrick Henry and George Mason were appointed co-chairmen of a committee to draft a Bill of Rights to be added to the Constitution. Mason was selected because he and Richard Henry Lee kicked up a fuss because a Bill of Rights had not been part of the original Constitution, and the two of them are responsible for a compromise which allowed the Constitution to be ratified by the Several States on the condition that a Bill of Rights would follow immediately. George Mason felt that the English monarch's intention to "disarm the people; . . . was the best and most effectual way to enslave them." (34) Lee, no less concerned with the individual right to arms, wrote in Letters From the Federal Farmer, that "to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." (35)
To secure ratification of the Constitution, the Federalists had committed themselves to the addition of "further guards for private rights." (36) To this end, the Federalists put forward Madison, the leading and most ardent supporter of the original Constitution in Congress, to draft the proposed amendments. Madison's own notes on his proposal reflect the ultimate organization of the Bill of Rights; his notes on the amendments, in which the right to arms appears very early, state that the amendments "relate first to private rights." (37) Equally corrosive of the exclusively state's right view is the original organizational scheme revealed by Madison's notes. Not conceiving the idea of simply appending the whole set of amendments to the Constitution as a separate document (today's "Bill of Rights"), Madison intended to attach them to, or after, each section of the original Constitution to which they related. Had he viewed the right to arms as merely a limitation on article I, section 8's provisions concerning congressional control over the militia, he would have inserted in section 8 immediately after clauses 15 and 16. Instead, he planned to insert it with freedom or religion, of the press and various other personal rights in section 9, immediately following clause 3, which establishes the rights against bills of attainder and ex post facto laws.
Surely the amendment was understood by Madison's congressional colleagues as guaranteeing an individual right. For instance, Madison's proposals that "the rights of conscience, of bearing arms [etc.] . . ., are declared to be inherent in the people." (38) In addition, two written interpretations on the proposed amendments were available to the members of the first Congress. The first, and more authoritative-by virtue of having received Madison's imprimatur-was a widely reprinted article by his ally and correspondent Tench Coxe. Having discussed the first amendment, Coxe moved on to describe the second in unmistakably individual rights terms: As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms. (39)
A similar interpretation appears from Anti-Federalist editorials. Samuel Adams, who had taken the modified Anti-Federalist position of conditioning ratification upon the addition of a guarantee of personal rights, had proposed in the Massachusetts Convention that "the said constitution be never construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms. (40)
Though this is telling, the wealth of debate that reveals the inner workings of other Constitutional provisions is lacking.
We may therefore successfully consult legislation that immediately preceded, as well as legislation that immediately followed the enactment of the Second Amendment.
The Pennsylvania Declaration of Rights enumerates sixteen rights of citizens, and is immediately followed by the Plan or Frame of Government for Commonwealth or State of Pennsylvania, which enumerates 46 provisions for the structure of the state. Passed in Convention on September 28, 1776, and signed by Benjamin Franklin, as president of the Convention, it anticipates the Constitution and Bill of Rights of the United States. In this document, article XII contains provisions incorporated into the First Amendment:
That the people have a right to freedom of speech, and of writing and publishing their sentiments: therefore the freedom of the press ought not to be restrained. (41)
Immediately following this, as is also the case with the Bill of Rights, is article XIII:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. (42)
As if to emphasize the acceptance of the armed citizen as good and normal, Article VIII, which states "That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto . . . "makes particular provision for one who because of conscience, cannot be a part of the militia: " . . . Nor any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent . . . " (43)
Just as Articles XII and XVI found themselves combined into the First Amendment, so did Article XIII and the concept of militia service find themselves combined in the Second. As I discuss below (Origins of Liberal Anti-gun Sentiment), the idea of exempting conscientious objectors was discussed in the process of framing the Bill of Rights, but was dismissed as a possible ploy for disarming citizens who had no such objection. The provision that a citizen could pay someone else to serve for him if his conscience forbade bearing arms also did not make it into the Bill of Rights, though it was proposed.
An examination of this document reveals much of the original hashing-out of the Constitution and Bill of Rights. It is much wordier and legalistic than its successor, but makes abundantly plain what such men as Thomas Paine-one of its framers-intended when they pared it down to the more elegant form which followed. Not only do the Constitution and Bill of Rights contain whole phrases taken bodily from the Pennsylvania document, but the telling phrase "the people have a right" and other specific references to individual rights, recurs throughout, and particularly when there might be any doubt that these are rights reserved to individual citizens as against incursion by the State.
When the Constitution came up for ratification, both Pennsylvania and New Hampshire kicked up a big fuss about the absence of a Bill of Rights. On December 12, 1787, Pennsylvania proposed 15 amendments containing guarantees for individual rights:
The amendments proposed by the Pennsylvania minority bear a direct relation to those ultimately adopted as the federal Bill of Rights. Indeed, eight of the first 10 amendments were first suggested as amendments in the proposals of the Pennsylvania minority. These include the following Amendments ultimately adopted: the First (freedom of conscience, speech, and press-Pennsylvania's proposed amendments 1 and 6); Second (Pennsylvania's proposed amendment 7); Fourth (Pennsylvania's proposed amendment 5); Fifth (privilege against self-incrimination and right not to be deprived of life, liberty or property 'except by the law of the land or the judgment of his peers'-Pennsylvania's proposed amendment 3); Sixth (right to speedy and public jury trial, to accusation and confrontation, and counsel-Pennsylvania's proposed amendment 3); Seventh (Pennsylvania's proposed amendment 2); Eighth (Pennsylvania's proposed amendment 4); and Tenth (Pennsylvania's proposed amendment 15). (44)
New Hampshire ratified the Constitution on June 21, 1788, thus bringing it into effect. Though the ratification occurred without a successful demand that a Bill of Rights be included, the New Hampshire Ratifying Convention had recommended 12 proposed amendments.
The first nine were taken almost verbatim from those proposed by Massachusetts. The last three were added by the New Hampshire drafting committee: 10) No standing army without a three-fourths vote and a ban on troop quartering (the latter the first official state recommendation of what became the Third Amendment); 11) 'Congress shall make no laws touching Religion, or to infringe the rights of Conscience' (the first official state recommendation of the freedom of conscience guaranteed by the First Amendment and, most important, the first use of the actual prohibitory language with which the First Amendment starts-a vast improvement, from a legal point of view, in the language of the freedom of religion guarantee); 12) right to bear arms (the first official state recommendation to protect the right guaranteed by the Second Amendment). (45)
On June 27, 1788, the Virginia ratifying committee also insisted upon amendments protecting basic individual rights as a condition for ratification." (46) Article 17, later adopted as the Second Amendment, is as follows:
That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. (47)
The Virginia Declaration of Rights of 1776 forms a precedent for all succeeding "Bills of Rights," and holds the singular distinction, followed by the Constitution and Bill of Rights of the United States, of being superior to all other laws within the state. It went through a number of drafts, but the first version in the handwriting of George Mason, stood substantially unchanged. In it, the antecedent of the Second Amendment finds an early form:
Article 12: That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. (48)
Thomas Jefferson's draft of the Virginia Constitution makes clear that he considered an individual right to keep and bear arms an indispensable mark of freedom. Under "Rights Private and Public," he enumerates:
No freeman shall be debarred the use of arms [within his own lands or tenements] (49)
The First Militia Act (1792) opens a further window to the legislative intent of Congress. In this Act, the "militia" spoken of in the Second Amendment is clearly defined to include the entire able-bodied military-age male citizenry of the United States, and required each of them to own a personal firearm. Richard Henry Lee in Additional Letters From The Federal Farmer (1788) made it abundantly clear that no mistake should be made: "A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . . To preserve liberty it is essential that the whole body of people always possess arms. . . "
Cut it any way you want to, you still end up with a Constitution and Bill of Rights which was framed by men who unequivocally felt that every American citizen had the right, the privilege, the honor and the obligation to possess pistols, rifles and shotguns-all weapons which were fully current at the time. The opponents of the plain meaning of the Second Amendment may wriggle and squirm as much as they wish, but there's no way around it.
English common law, and its descendant, American common law, make much of legal precedence and legislative intent. Unless some way can be contrived to make an exception of the Second Amendment, its plain meaning must be honored in law and in spirit.
THE SECOND AMENDMENT ITSELF
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.
THERE are many good and sufficient reasons why the citizenry of a healthy Republic should be armed, all of which are expressly contained within, implied by, or beneath the penumbra of, the Second Amendment. None of these excludes the others. Indeed, they work together to make a strong fabric of legal purpose.
The Framers of the Constitution recognized the necessity of an armed populace, and incorporated that fundamental right into the Bill of Rights. The Second Amendment recognizes that:
The citizen has a natural and inalienable right to self defense and to the means of self defense.
The possession of arms distinguishes the free man from the slave.
The possession of arms breeds independence, self-respect and civic responsibility.
An armed citizenry reduces the incidence of criminal activity.
The armed citizen is not compelled to rely upon the assistance of the State for all protection.
The armed citizen forestalls the rise of a tyrant from within the State.
A citizenry accustomed to the use of arms and provided with their own personal weapons can come to the assistance of the State as a militia, either to subdue domestic turmoil or to repel a foreign invader.
The Second Amendment is not an Archaism
I am unprepared to accept that parts of the Constitution may be dismissed as vestigial archaisms, perhaps valid in the eighteenth century, but no longer of any relevance to our modern day.
The first ten amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution. The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments-Legislative, Executive, and Judicial. . . . In construing other constitutional provisions, this Court has almost uniformly followed the precept . . . 'It is never to be forgotten that, in the construction of the language of the Constitution . . ., as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. . . . I cannot consider the Bill of Rights to be an outworn 18th century 'straight jacket' as the Twining opinion did. Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights. . . . To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution. - Justice Black, expressing a dissenting opinion in Adamson v California 332 us 46 (1947)
The whole trend of The Enlightenment was toward recognizing the significance of the individual as a valid participant in the political process. Individual responsibility for action and belief is the heart of the Protestant faith; a logical consequence of these concepts is that the citizen becomes the monitor of the State.
The Third Amendment, Though Infrequently Invoked, is not by that Standard Obsolete
THE Third Amendment provides that
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The Third Amendment is sometimes cited-in company with the Second-as an old-fashioned garment which we could easily discard. This is a dreadful misunderstanding. The reason that soldiers do not come into our houses, eat up our food, insult our womenfolk and spy on our daily activities is because it is forbidden by the Constitution, by the Congress, and by the people.
People tend to forget pain when the pain is no longer with them. They forget what caused the pain, and may even lightly dismiss the dangers that surround them simply because they are not at that moment suffering. They take chances that they shouldn't, get hurt, and wish they'd been more careful. But, by then it's too late.
Nothing would be more convenient for a repressive regime than to have soldiers living among-living in the very homes of-a suspect group. If the government could do so without fear of censure or retribution, you may be sure that soldiers would be quartered among and upon people in potential trouble spots.
Think of the Third Amendment as a kind of lightning rod that we all have on our houses. Should we tear it off just because we haven't been struck by lightning recently? If we dismiss the lightning rod as useless, have we not completely failed to grasp the function of a lightning rod? A lightning rod safeguards your house from destruction by lightning: if your house has not been destroyed by lighting, it means that either 1) there hasn't been any lightning around for a while or 2) the lightning rod has been doing its job. In either case, you'd have to be some sort of lunatic to take off the lightning rod simply because your house hasn't been demolished by lightning. I fail to see the virtue in the "it's old so lets toss it in the trash" line.
The Third Amendment follows the Second with good reason, just as-for equally good reason-the Second follows the First.
No less a menace than rioters or outlaws was the pillaging soldier, loosed not only on foreign populations but in his own country for political, religious, or social reasons or because of the King's inability to pay and thus to control him. Generally speaking, there was no difference in character among rioters, felons and soldiers-who were often one and the same. Often the soldier was a common criminal inducted directly out of jail and unleashed on the King's enemies, whether foreign or domestic. The perpetration of such outrages upon his critics by Charles I engendered the Petition of Right of 1628 and helped eventually to bring him to the headsman. But of innumerable such examples that might be cited from European history in this period, probably the one most remembered by eighteenth century Englishmen and Americans would have been the persecution that drove the Huguenots to their shores by the thousands. As a modern historian has noted, among the numerous tribulations visited in the 1690s upon the Huguenots in order to compel them to convert,
'. . . the most atrocious-and effective-were the dragonnades, or billeting of dragoons on Huguenot families with encouragement to behave as viciously as they wished. Notoriously rough and undisciplined, the enlisted troops of the dragoons spread carnage, beating and robbing the householders, raping the women, smashing and wrecking and leaving filth . . . [Barbara W. Tuchman, The March of Folly, 21 (Alfred A. Knopf, 1984)]
As Englishmen and Americans were well aware from their readings of Bodin, Beccaria and Montesquieu, the Huguenots had been rendered incapable of resisting either individually or as a group by the Continental policy of disarming all but the Catholic nobility." (50)
The Third Amendment is one of those rare examples of a law that everybody agrees is a good one, and that everybody obeys. (51) Scarce as hen's teeth.
The Fourth Amendment, against unreasonable search and seizure, flows inevitably from the Third:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
These same soldiers, so obnoxiously quartered on the citizens, were also the means by which the Crown sought to police the increasingly rebellious populace.
During the 1760s and early 1770s England dispatched ever-increasing numbers of troops as the Stamp Act was added to the Navigation Acts, and then succeeded by the Townshend Acts, the Tea Tax, etc. These soldiers (eventually operating under a specially appointed British Customs Board) executed both ordinary warrants and the notorious Writs of Assistance under which they made wholesale searches of vessels, homes, vehicles, and warehouses, perusing goods, documents and records, all in a tumultuous process in which even those things not seized were often destroyed along with the surrounding furnishings. (52)
In short, not only are these rights phrased in substantially identical terms (the first, second and fourth amendments all speak in terms of "rights of the people"), but their roots, and the situations in which they were visualized as operating, are closely identified. (53)
Despite Antique References, the Seventh Amendment Is not Obsolete
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
ANYONE who tried to seize upon the archaic "where the value in controversy shall exceed twenty dollars," and from that construct an edifice which denied the validity of the Seventh Amendment, would not get too far. The courts look at the literal wording, the original spirit and intent, and continue to enforce its clear dictate with no palaver about "twenty dollars" cluttering up the issue at hand.
Though courts sometimes give constitutional rights additional scope in order to effectuate what is deemed to be their original intent, courts have no authority to reduce or eliminate the plain terms of a constitutional guarantee because they disagree with that intent or view it as obsolete. (54)
This refusal to arrogate to itself the power to delete the provisions of the Constitution is clearly expressed in the case of State of Oregon v. Kessler (1980) in which the court acknowledged its responsibility to accept the intent of the drafters of the Constitution:
We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision may not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment. (55)
In this the court bowed to the dictate of Alexander Hamilton who firmly stated in the Federalist Papers, Number 78, what courts may and may not do regarding legislation:
[T]he right of the courts to pronounce legislative acts void . . . [does not] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. (56)
An Armed Populace Demands the Respect of its Government, and Intimidates the Aspiring Tyrant
I am not here to argue that guns are not dangerous, though indeed they are not so dangerous as many would like to think. Guns are dangerous, and that is their purpose. In the hands of the American public, guns are an inexpensive, highly effective form of insurance against the excesses of government, and against the rise of a tyrant. They serve, from time to time, to chasten an overweening authority and dish out a generally tonic lesson in humility, something that all governments profit from when they lose sight of their proper function.
The Second Amendment is a vital part of the system of checks and balances that has made our system of government so durable. Just as an armed citizenry discourages violent crime, so does it discourage the greatest enemy of Democracy, a rapacious government.
Among other evils which being unarmed brings you, it causes you to be despised. -Niccolò Machiavelli (1469-1527) The Prince (1532), chapter 14 (57)
Immediately after the disarming of the Japanese peasantry, the sword-wielding Samurai class was given the right to "kill and depart." To complete the humiliation and terror of the upstart peasant, any who failed to render appropriate subservience to his social better could be struck down on the spot and left to welter in his gore. This technique worked very well indeed. The neck of the Japanese people has grown to love the yoke for which it was fitted it in the sixteenth century. (58)
Government respects strength and despises weakness. Nothing illustrates this so well as Harry Hopkins' account of the "Big Three" meeting at Yalta toward the end of the Second World War. Churchill is reported to have told the other heads of state that the Pope had suggested that a certain course of action would be right. Stalin is reputed to have indicated his disagreement by asking, "And how many divisions did you say the Pope had available for combat duty?" (59)
The right of revolution is an inherent one. When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a government more acceptable. - Ulysses S. Grant, Personal Memoirs, I
If they are strong enough. There you have it. If the people are weak, in resolve, in expression or in arms, they must endure oppression.
The logical response when the First Amendment rights are outlined is, "Where's the beef?" Right there in the Second Amendment.
The Second Amendment is the "enabling clause" of the original ten amendments to the Constitution. In order for a law to work, it must be enforceable. Within the structure of a body of law there is contained, either implicitly or explicitly, something that gives the law some teeth. The enabling clause of the Magna Carta was Chapter lxi, which provided the Barons with the right to use physical force against the king or his representatives if they disobeyed the law. When a policeman arrests a suspected criminal, the force employed is a legal use of force. What the framers of the Constitution provided with the Second Amendment was the legal use of force to compel the State to obey the law.
Succeeding amendments are "self enabling." The Thirteenth Amendment, for example, is in two sections. Section one is the amendment itself, followed by section two, which states, "Congress shall have power to enforce this article by appropriate legislation." This gist of this clause is repeated in the Fourteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third, Twenty-fourth and Twenty-sixth Amendments.
The Second Amendment exists to forestall the rise of tyranny. The balance of power between the government and the governed should be equal. All the might should not be on one side. Power corrupts, and an all-powerful government will become corrupt. If the citizen can confront his government with force of arms, it is that much more difficult for the government to become corrupt and tyrannous. The Founding Fathers regarded occasional "challenge from below," as good for a government. As Thomas Jefferson wrote in a letter to James Madison on January 30, 1787,
I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical.
And in a letter to William Stevens Smith on November 13, 1787,
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.
To paraphrase William Safire, those in authority should occasionally be taught a lesson in humility. Government must not view itself as god-like, omnipotent, omniscient, omnipresent and eternal, because it isn't. Occasional suffering teaches an arrogant government to respect its constituency, and refreshes the collective mind that though government is not perfect, it is perfectible.
If citizens are at the mercy of their government, they strive to protect themselves when injustice is perceived by creating, from among themselves, tyrants and demagogues. A secure citizenry is much less influenced by rabble-rousers.
The operative word within the Second Amendment is "free." If the Second Amendment were to have been framed without that word, thus:
A well-regulated militia being necessary to the security of the State, the right of the people to keep and bear arms, shall not be infringed.
It would clearly outline a responsibility of the citizen to the State, similar to the obligation expressed and defined in Chapter xvi of the Magna Carta.
XVI: No one shall be forced to do more service for a knight's fee, or for another free holding, than is due from it.
Chapter XVI declares that those who owe military service for their lands shall not be called upon to perform more than the due amount of that service. This provision, protecting the citizen against a punitive or excessive military obligation, is quite distinct from Chapter LXI, which empowers the citizen to compel the king to honor his agreements, by force of arms if necessary.
Since, however, the Second Amendment indeed contains the word "free," two things become inescapable: first, that the Second Amendment was intended to reserve a right of citizens to protect themselves against possible incursions by the State itself and second, that the purpose of this Amendment was to keep the State itself free. Free from foreign aggression, no doubt; free from domestic insurrection, probably; but free from the most dangerous eventuality likely to confront the fledgling Republic-the rise of internal demagogues and despots-certainly. To entrust the welfare of the State to the State itself is, on its face, nonsense. To safeguard the State by entrusting its welfare within the body of the people themselves is plainly the legislative intent.
Caesar had his Brutus; Charles the First his Cromwell; and George the Third ["Treason!" cried the Speaker]-may profit from his example. If this be treason, make the most of it. - Patrick Henry, Speech on the Stamp Act, House of Burgesses, Williamsburg, Virginia, May 29, 1765.
Citizens should be armed in order to counter the dangers of a professional, king-making army, unresponsive to any branch of government (see clause 6 of the Declaration of Right, above). The interests of the military and the interests of a democracy are often in conflict. If one side has all the words and the other side has all the guns, in the event of controversy the well-organized, armed party will probably prevail. This happened in Ancient Rome, and it could happen here. The professional army, particularly the Praetorian Guard, became the kingmakers of Rome, even going so far as to elect a dictator from among their number. Therefore, the framers of the Constitution provided for a citizen army, as in the early days of the Roman Republic.
What the Second Amendment says is this: in order to throw off the yoke of tyranny, we need a citizenry that's able to form an army. In order to do that, we have to make sure that the guns aren't all on one side (the tyrant's) but evenly distributed among the populace. This will serve two useful ends: first, we'll have citizens who can, on short notice, become competent soldiers if we need them. Second, they'll have enough clout to intimidate the potential tyrant so that we might not even need to bring out the militia in the first place. An armed citizenry is its own best excuse, if you follow my drift. (60)
If we go beyond the models provided by Britain, and examine the broad Classical foundation of the Constitution, we can make a good case that the intent of the Second Amendment was not so much to resist an aggressor, or to topple a tyrant, as to prevent the rise of a tyrant in the first place. We see therefore that the "well-regulated militia, being necessary to the security of a free State," is not so much designed to prevent the invasion of King George as to forestall the rise of King George Washington. This interpretation is entirely valid in the light of the model of ancient Rome and its decay and the thorough understanding of the problems of a new Republic in the light of the old.
Nothing is in the Constitution for No Reason
ANY contention that the Second Amendment is present in the Bill of Rights by random accident, and is not there because it enumerates rights of the citizen vis-a-vis the State is deeply unconvincing. The right of the citizen to keep and bear arms is enumerated in the Bill of Rights, immediately after freedom of speech and religious worship, because it is of the greatest importance, and its precepts were elemental to earlier English documents with similar aims. I am unprepared to accept that the framers of the Constitution, so perspicacious in other regards, took a casual attitude toward these first ten amendments to the Constitution.
In Richfield Oil Corp. v State Bd. of Equalization, Justice Douglas, recounting a dictum of Chief Justice Marshall, stated, "it would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of [the Constitution] expressly provide, shall be exempted from its operation." (61)
The Second Amendment Applies to Both the Federal Authority and to the States
THE argument that the Second Amendment is applicable only to federal authority, and not to the states, is exactly the sort of weasel wording used in bygone times to slip around the demonstrable intent of the framers of the Constitution. This is the argument that in times past was also leveled against the First Amendment, and is as invalid now as it was then. The Fourteenth Amendment clearly states,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fifteenth Amendment, which has been found so elastic as to stretch the First Amendment to cover the Several States and all localities within them, extends the strictures binding the Federal Authority to bind the States, as well.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Should, therefore, the Federal Authority recognize the fundamental right to self-defense expressed by Thomas Hobbes and recapitulated in the Federalist Papers, the sundry restrictions imposed by the various States, counties and municipalities would be swept away with one breath.
The celebrated case of Heart of Atlanta Motel, Inc. v United States (1964) which outlawed private discrimination in public accommodations held that Congress had "ample power" to overturn state and local laws when they came into conflict with the precepts of the Fourteenth and Fifteenth Amendments. In a similar case, the State of South Carolina held that the reserved powers of the state were encroached upon by the 1965 Voting Rights Act. In South Carolina v Katzenbach (1966) the Court held that the Fifteenth Amendment gave Congress broad powers to "use any rational means to effectuate the constitutional prohibition of racial discrimination in voting."
What's sauce for the goose is sauce for the gander. I would like to see the logic of these cases applied to the Second Amendment.
The Second Amendment Reserves a Right of the People as Individuals
FROM the founding of our nation through the middle of this century, the general legal understanding of the Second Amendment has been that it guaranteed every law-abiding citizen the right to possess most ordinary weapons. (62)
Coincident with the Warren Supreme Court (1953-1969), a period distinguished by otherwise sweeping liberalization of the rights of the individual, somehow the Second Amendment ran afoul of an anti-gun mentality which sought to divest the individual of his arms in favor of an interpretation that guaranteed the right as extending only to the Several State's right to arm formal military units. (63) Contrary to the general trend, this States' Rights, anti-Second Amendment stance was eagerly embraced by those who should have most been outraged by it-the American Civil Liberties Union and the American Bar Association.
The measure that the Second Amendment exists solely "in furtherance of a well-regulated militia," i.e., whether it serves the State, not whether it serves the individual citizen is the official position of the American Civil Liberties Union, as outlined in a letter to me on June 11, 1993. (64)
The Framers of the Constitution did not differentiate between the citizens right to bear arms for the purpose of self defense and for the purpose of serving the needs of the State, and it is a flight of legal fancy to distinguish between them on Constitutional grounds.
It is absurd to construe the Second Amendment as having no relevance outside of service to the welfare of the state, since a central function of the Second Amendment is forestall the extermination, enslavement and abuse of citizens by their own government.
Furthermore, the Second Amendment contains the telling words, "right of the people." The Constitution makes careful use of these words, and any reading which interprets them other than contained in the plain legislative intent is wrong on its face. When the Bill of Rights uses the phrase "the people," or "the right of the people," it refers to the right of the people as distinct from the right of the States. No slight-of-hand can separate the identical phrase in the First Amendment, the Fourth Amendment and the Ninth Amendment from that found in the Second. No legerdemain can pretend that the Tenth Amendment does not clearly outline a separation of powers among the United States, the States themselves and the people. I cannot imagine the logical process that contrives to construe that the phrase "right of the people" actually means "right of the States" in this Amendment only, while freely admitting that any such reading, if applied to the First Amendment or to the Fourth would be utterly grotesque.
I encountered this same pitiful logic in a book that was kicking around the house when I was a boy. In it, the author strained to prove that every time the Bible used the word "wine," it actually meant "grape juice." (65) Even at the age of seven I was unconvinced. Even a child can see through this sort of shabby rhetoric, and I find myself astonished and ashamed that any responsible, well-educated American-such as members of the American Bar Association or the American Civil Liberties Union-could seriously expect such a painfully contrived conclusion to pass unremarked. If the matter were not so serious, it would be comic.
The Second Amendment does not Secure a Collective Right to the Exclusion of an Individual Right
MANY otherwise staunch defenders of the Constitution and Bill of Rights support an interpretation of the Second Amendment which "guarantees nothing to individuals, [and] protects only the state's right to maintain organized military units." (66)
The American Civil Liberties Union was founded by Roger Baldwin in 1920 as a primary defender of the First Amendment. In no time flat, it became the champion of the whole Bill of Rights, with the notable exception of the Second Amendment. To be sure of the ACLU's position, in April of 1993 I wrote them and asked them to tell my what the ACLU official position actually was. On June 8, 1993, I received a reply from Rita Buland, speaking for ACLU Public Education:
As you know, the amendment states that "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."
The ACLU agrees with the Supreme Court's longstanding interpretation of the Second Amendment as set forth in the 1939 case, U.S. v Miller: that the right to bear arms applies only to the preservation of a "well-regulated militia." Except for police and military purposes, we believe that the possession of weapons by individuals is not constitutionally protected. (67)
I have enclosed a copy of our policy on gun control. (68) As you can see, there was a period of time just after the adoption of this polity when the ACLU affirmatively supported gun control legislation. That portion of the policy was reconsidered and corrected in 1980 so that now the ACLU takes a neutral position on the gun control issue.
Our neutrality on this issue means that we neither favor nor oppose gun control laws. Rather, we believe that there is no constitutional objection to gun control laws in general. At the same time, however, we are mindful of regulation, licensing, and registration schemes which may involve violations of civil liberties, because they may involve invasions of privacy or may engender illegal searches and seizures.
It is true, many hold a different view of the Second Amendment. And its "true" meaning, of course, has perplexed constitutional scholars for quite some time. Reasonable people can, and do, disagree over whether or not the amendment confers an individual civil liberty to bear arms, or instead recognizes the right of the states to maintain militia capable of resisting tyranny by the federal government.
Many people have argued that the right to own guns is textually manifest in the Constitution. This, in itself, is far from clear. However, even if such an interpretation were clear, it is still unclear whether the Constitution was meant to be understood and followed literally. The ACLU believes that in analyzing any civil liberties policy, one must begin prior to and independent of the existence of any given constitutional or other legal protection. (69) We must put ourselves in the position of the framers of the Constitution and ask what rights we believe should exist. (70) The Constitution then provides enforceable legal protection for those rights.
For example, we support free speech not because there is a First Amendment; rather, we support the First Amendment because we believe in free speech and need strong legal protection for it. If the First Amendment were abolished tomorrow, our policies supporting freedom of expression would remain unaltered, although it would be much more difficult to implement them. (71)
So, what was the liberty interest that the framers were trying to protect when they adopted the Second Amendment? It was not the interest in arming citizens against one another [emphasis in original]. (72) Rather, it was the interest in preventing the government [emphasis in original] from enjoying a monopoly of weapons sufficient to destroy the liberty of the citizenry. (73) The desire of some people to defend themselves against criminals rather than cede that responsibility to a public police force is not a civil liberty against the state. In short, the ACLU believes the liberty interest the framers had in mind when they adopted the Second Amendment was the maintenance of state militia (which at that time was made up of armed citizens) in order to be able to resist national government tyranny. (74) And the framers' very great concern over national government tyranny was based on their own very recent experience with the British monarchy. (75)
Two hundred years ago, the only way to maintain the states' collective capacity to resist national armed might was to maintain state militia; and the only way to do that was to allow citizens to remain armed. (76) Is that still true today? If we regard private citizens as our protectors against national repression, then we must provide them with adequate arms to do the job. Muskets may have been sufficient in the 18th century, but today we're talking tanks, bazookas, missile launchers and helicopters. Any meaningful arming of individual citizens today against government repression would raise powerful countervailing public interests in not permitting individuals to own such weapons. (77)
I have briefly commented in footnotes on some of the major points of disagreement with this interpretation of the Constitution and Second Amendment. These arguments are expanded upon throughout the text. I wish here to discuss the actual wording, per se, and two deeply differing readings of the same sentence.
The reading that the ACLU, among others, gives to the Second Amendment is, at the very least, one which betrays a singular inability to parse an English sentence. Their semantic interpretation is this: since the state needs a militia, the people may be armed. Furthermore, the people may be armed only to the degree that the state requires a militia, and then only with weapons that are appropriate to the actions of a state militia. If the state no longer requires a militia made up of armed citizens, there is no longer any justification for citizens to possess arms. Since we have a volunteer militia, armed by the state rather than by the individual members, and since we have a police force at the state, county and local level, there is no longer any Constitutional justification for any citizen to have any weapon. The Second Amendment secures a collective, rather than an individual right.
Leaving aside for the moment that the notion of "collectivity" has been used to exclude citizens from their individual freedoms in the past, and that this is no exception, let us concentrate on the actual structure of this not terribly complex English sentence.
The schoolmarms who have parsed the Second Amendment in this manner have parsed it wrong. Let us return to the blackboard.
"The right of the people to keep and bear arms," is an independent clause. This phrase recognizes that the people already had the right; that it was a pre-existing right, and that it was not to be infringed upon. Clearly, a right that does not already exist cannot be infringed upon, and the use of the word "shall not be infringed" plainly acknowledges that the right already existed and was recognized as such, even before there was such a thing as a State. The Second Amendment is not calling the right into existence, but is acknowledging the reality that the people already possessed the right to keep and bear arms. That they had a right to self-defense and to the means of self-defense; that they had a right to possess weapons for the purpose of securing food for themselves and their families; that they were expected to come to the common defense in the event of necessity; all these were fully recognized by the Framers of the Constitution as already in existence. When the Second Amendment says, "A well-regulated militia being necessary to the security of a free State," this is a dependent clause which adds to the reasons why the right of citizens to be individually armed should not be infringed. It does not define the reason why they should be armed, nor does in constrain the reason why the people have this right. The Second Amendment adds to pre-existing rights the additional justification that the armed citizen has the right and obligation to serve in the militia for the purpose of ensuring the domestic tranquillity, to come to the defense of the individual state in the event that the federal authority should attempt to treat it unjustly, and to prevent the rise of tyrants on both the local and federal levels.
There is nothing in the Constitution that states or implies that the inclusion of one right diminishes another. Indeed, the Ninth Amendment clearly states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Any reading of the Second Amendment which contrives to parse its structure in such a manner that it actually infringes upon a clearly understood right of the people which was specifically not to be infringed by the addition of another right-that of serving in the militia in order to keep the state free from tyranny-is contrary to both the spirit and the letter of the legislative intent, the blackletter of the Amendment itself, and the clear meaning of the Ninth Amendment.
Any interpretation that the Second Amendment secures a collective right to the exclusion of a personal right is nonsense on its face. People do not suffer collectively, they suffer as individuals. The Second Amendment admits their natural right to protect themselves, qua individuals, against oppression and assault. The State offers protection only on the average. The specific must be left up to the individual. A collective right must, necessarily be an individual right, as well. If it is not an individual right, it is a right of the whole people only, and thus is in actuality a right of the State. If the people have a collective right to defense, they may have a police force, a state militia and an army to protect them. However, if they are individually denied the right to keep and bear arms, or if that right is so circumscribed as to be essentially without substance, it is a right of the State only. This is contrary to the meaning and intent of the Second Amendment, which recognizes the individual's natural right to self-defense, as well as the necessity of an armed citizenry per se as a safeguard against corrupt and tyrannous government.
How much help can a citizen demand from his government when he opposes his government? - William Safire, Job, The First Dissident, Random House, 1992, page xxv
How else indeed, could the Declaration of Independence presume to declare:
That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.
It is difficult to imagine a people altering or abolishing a government when they possess arms collectively only-that is, when the government is armed and the citizen is not. One might even go so far as to say that a collective right is no right at all.
Can you imagine this perversion applied to other civil rights?
Let us suppose that the First Amendment phrase, "right of the people peaceably to assemble, and to petition the government for redress of grievance," were interpreted as implying only a collective right. Using the logic of the American Civil Liberties Union and the American Bar Association as applied to the Second Amendment, you do not have an individual right to freedom of speech, but "assemble" and "petition" mean that you have the collective right to do so. That is to say, a government agency intercedes between you and your elected representatives, and speaks for you if you have a gripe. Here's how it works: you fill out a form and submit it to the Ministry of Truth, or to your union representative, or your local police station. In turn, your suitably edited comment-together with the comments and observations of other Americans-is published in the official government newspaper. We'll call it "Truth," or perhaps "Information." You yourself are not permitted to speak out, as this would threaten the stability of the State and the safety of other citizens. Does this sound like a good interpretation of the First Amendment? Uncle Joe thought that the people had a collective right to speak and to keep and bear arms. What a great guy he was. Right?
How about a collective right only to a fair and speedy trial? To bring a suit at law? To be free from cruel and unusual punishments? To be secure in your person and papers? To be represented by counsel? Gibberish, isn't it.
I don't really think I need to go on.
The Possession of One Right Does Not Imply the Exclusion of Other Rights
THOSE who maintain that the needs of the State should entirely circumscribe and define the rights outlined in the Second Amendment are making at least one serious logical error. That is, that one right precludes another. This true neither in logic nor in law. A personal right may exist for personal reasons, and societal rights may exist for societal reasons, both expressed in the same legal clause and in the same words. There are all kinds of reasons for having rights, and they need not be mutually exclusive. A right can be something that enhances the life, pleasure or welfare of an individual without doing any harm to society. A right can also be something that directly benefits society.
For example, the citizen has the right to privacy, which extends to the right to use a condom for the prevention of unwanted pregnancy. Society is neither helped nor harmed by this choice on the part of an individual to engage in sexual activity for fun rather than procreation. The use of a condom also prevents the spread of sexually transmitted disease. This benefits both the individual and society. The prevention of an unwanted pregnancy benefits society because an unplanned and unwanted child might become a burden on the State. All of these reasons are independently grounds for the right. None excludes the others, and indeed, they all work to enhance the right.
The Second Amendment Admits the Natural Right to Self-defense as Well as the Means
He who accepts protection, stipulates obedience. - Samuel Johnson (1709 - 1784) Address to the Electors of Great Britain
CITIZENS should themselves be armed so as to forestall absolute reliance on the government for protection, and the inevitable paternalism, so abrasive to a Republic, which would result.
Those who would "forbid or severely restrict the sale of guns ignore [the] facts. Worse, they adopt a position that is politically absurd. In effect, they say, 'Your government, having failed to protect your person and your property from criminal assault, now intends to deprive you of the opportunity to protect yourself." (78)
On March 24, 1994, three young teenagers walked through my neighborhood on their way to King Junior High School, a few blocks away. My neighbor was in her front yard with her three small daughters, playing as she gardened. One of the boys picked up a bottle and threw it at the youngest girl, narrowly missing her and scattering shards of glass on the others. Another neighbor confronted them, and they threw another bottle. This with no provocation of any kind. The three were pursued, and one was identified to the school principle. The other two returned later, and continued hassling and antagonizing neighborhood residents. When the police were called, the response was that all officers were engaged in a shoot-out in a parking garage on Center Street, and no response could be made.
During times of civil disturbance, when things are much worse than might occur as a result of one teenage boy with a pistol shooting at an enemy in the BART station, there will be no police protection of any kind for anybody. There will be no law. The citizen will be thrust upon his own resources, to protect his life, family and property as best he can. To be unarmed is to invite disaster.
I mean to disagree vehemently with those who do not interpret the Second Amendment as expressing a fundamental right. The citizen has an absolute and logical right to self-protection, well-understood by the framers of the Constitution. In The Leviathan, his monumental work on the nature of government, the English philosopher Thomas Hobbes (1588-1679) wrote:
Whensoever a man transferreth his right, or renounceth it; it is either in consideration of some right reciprocally transferred to himself, or for some other good he hopeth for thereby. For it is a voluntary act; and of the voluntary acts of every man, the object is some good to himself. And therefore there be some rights which no man can be understood by any words or other signs, to have abandoned or transferred. At first a man cannot lay down the right of resisting them that assault him by force, to take away his life; because he cannot be understood to aim thereby, at any good to himself.
Hobbes thus expresses what was undoubtedly an opinion shared by the framers of the Constitution: that citizens have a natural right to self-protection, and that this right is inalienable-it can't be taken away and you can't give it away. By this we may conclude that, though the State was expected to provide a certain amount of general protection for the citizen, the citizen was understood to preserve to himself the immediate right and therefore the immediate means of self-protection.
Both the citizen and the state have a right to self-defense, though the need of the citizen is more urgent, as he has the lesser ability to defend himself.
The word "free" contains another important clue to the intent of the Framers of the Constitution. Blackstone maintained that the right to keep and bear arms was among the "absolute rights of individuals at common law," vital both to the preservation of a free government and to the liberties of the citizen. Like Hobbes, he described the right to bear arms as being "for self-preservation and defense," by which he meant "the primary law of nature [which cannot be] taken away by the law of society." It was not only a personal right but a political right. It was "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." In this, Blackstone not only echoes Thomas Hobbes but incorporates into the rejection of State paternalism the notion explicit in the Magna Carta that the citizen has both a right and a duty to reject, by force of arms if no other recourse is available, a government that will not subordinate itself to the law.
In these several rights consist the rights, or, as they are frequently termed, the liberties of Englishmen. . . . So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. . . . And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular and free course of justice in the courts of law; next, to the right of petitioning the King and parliament for redress of grievances; and lastly, to the right of having and using arms for self-preservation and defense.
In the classical view, expressed by both Hobbes and Blackstone, and inevitably the intent of the Framers of the Constitution,
Arms possession for protection of self, family and polity was both the hallmark of the individual's freedom and one of the two primary factors in his developing the independent, self-reliant, responsible character which classical political philosophers deemed necessary to the citizenry of a free state. The symbolic significance of arms as epitomizing the status of the free citizen represented ancient law. From Anglo-Saxon times 'the ceremony of freeing a slave included the placing in his hands of arms "as a symbol of his new rank.'"[A. V. B. Norman, The Medieval Soldier 73 (Thomas Y. Crowell Co., 1971)]
Anglo-Saxon law forbade anyone to disarm a free man and Henry I's laws applied this even to a man's own lord [The Assize of Arms (1181), reprinted in David C. Douglas & George W. Greenaway, eds., 2 English Historical Documents at 416 (Eyre & Spottiswoode, 1953).
Such precedents were particularly important to theorists like Blackstone and Jefferson, to whom the concept of '"natural rights" had a strongly juridical tinge relating to the English legal heritage.
The Anglo-American legal distinction between free/armed and unfree/disarmed flowed naturally into the classical republican view that the survival of free and popular government required citizens of a special character-and that the possession of arms was one of two keys in the development of character. From Machiavelli and Harrington classical republican philosophy derived the idea that arms possession and property ownership were the keys to civic virtue. In the Greek and Roman republics from whose example they took so many lessons, every free man had been armed so as to be prepared both to defend his family against outlaws and to man the city walls in immediate response to the tocsin warning of approaching enemies. Thus did each citizen commit himself to the fulfillment of both his private and his public responsibilities. (79)
Supreme Court Decisions Concerning the Second Amendment
IN all Constitutional disputes, we begin by consulting the Delphic Oracle of Supreme Court decisions. Unlike other provisions of the Constitution and Bill of Rights, which consume whole yards of shelf space, there are very few Supreme Court decisions that can be considered peripheral, and still fewer that can be cited as directly addressing the matter at hand.
The ACLU and other anti-gun groups generally cite United States v Miller, a 1939 case which decides that the 1934 National Firearms Act is constitutional. The Court found that the Act was not an attempt on the part of the Federal Authority to usurp the police powers reserved to the states, on the grounds that, though regulations were applied to the transfer and taxation of firearms, strictly circumscribing possession of certain kinds of firearms vis-a-vis private citizens-notably sawed-off shotguns and other "gangster-type" weapons-the right of citizens to keep and bear arms in the narrow context of the need of the Several States to have and maintain a militia was not thereby infringed.
This case does not refer to any other right of citizens, and does not imply-as is indeed prohibited by the Ninth Amendment-that the affirmation of one right impinges upon any other right. Though often cited, this case has nothing to do with the Constitutionally defined ability of any governmental body to deny citizens the right to arms that fall within a "militia-type" definition. Specifically enumerated in this legal case are pistols, revolvers, rifles and ordinary shotguns as appropriate to citizens. Further