Capitol Hill Blue Forums Political Issues Guns Court Rules in Favor of Second Amendment Gun Right

As i said yesterday.....


Los Angeles Times

I agree with Phil.

Can anyone explain to me the clause “A well regulated Militia, being necessary to the security of a free State”. If that phrase has nothing to do with the right to bear arms, why did the framers of the constitution write it and include it in the amendment. Why didn’t they just say the right to bear arms was “self evident” and omit any reference to militias?

Although we seem to think that it is the duty of the Supreme Court to use the Constitution to limit or, at the very least, define the limits of the Rights of the People, the opposite is true. The duty of the Court is to place limitations and the definition of those limitations upon the object of those Constitutional limitations and that is the government itself. The Constitution, especially the Bill of Rights, did not establish any Rights; it only enumerated and expounded those Rights.

As such, the Framers considered such Rights as “self-evident”, with no real need of explanation or definition. While prior to the Bill of Rights, most of the Framers of the Constitution believed that there was no need to enumerate such Rights because they were “self-evident”, there were those, thankfully, that felt it was necessary to ensure that these specific Rights were delineated within the Constitution as a defense against usurpation. To extend the enumeration of these “self-evident” Rights the Framers also included in the Bill of Rights both the 9th and 10th Amendments which made it perfectly clear that there were Rights Retained by the People that are not even enumerated in the Constitution, Rights that no government, no court and no Congress are entitled to either comment on or limit.

All authority, from the People, is Delegated in Trust to the government, both on a State and a federal level. This Delegated Trust of such authority and power is a limitation upon the government by the People in the form of the Constitution. The Constitution was considered to be chains, not set upon the People, but upon the government, restraining it from over-stepping the authority and power that was Delegated in Trust to it by the People. There are, after all, powers and authority that the People never delegated to the government, that the People never consented to relinquish. Remember, it was the People, in their Sovereignty, that created the government and in that principle the creator of a thing is more powerful than the thing created.

To advocate, as many now do, the flexibility of the Constitution, its interpretation and application is to do so at our peril. For if we allow the arbitrary interpretation and application of this legal blueprint upon which this country is built, then any political agenda can use such flexibility to their own particular and possibly pernicious ends. No matter which political ideology is in power at the time, they would be able to skew the meaning to suit their own political or social agenda, be they on the left or the right. It is a dangerous position to take for you never know who will hold power in the future and they might make the same argument of the Constitution’s flexibility, in doing so we might not like that particular interpretation or application. If the Constitution can be twisted to suit the needs of one group who happens to gain power, then it can easily be twisted to suit the needs of some other group of people when they too gain power. I prefer an interpretation and application as it was written, it is a much safer position to stand upon, especially in these times when political greed and power is at an all time high.

Concerning the 2nd Amendment, we must realize that a well-regulated Militia consisted of individuals, mainly farmers who own their own private weapons and used them both privately and as a part of the Militia when it was called up. The Militia didn’t have an arsenal of weapons to distribute to those individuals; the individuals owned their own guns and the government depended on that private individual gun ownership. Therefore, although there are those who strain at the logical progression of the definition of the 2nd Amendment should seek to relate the document with the Historical Context of the 2nd Amendment. It is when we attempt to separate the wording of the Constitution from its Historical Context that we bastardize the entire document and the simply meaning of its words. I realize that there are those who wish to make the Constitution so flexible that its meaning hold little in the way of concrete meaning, but that position is one of the most dangerous constructions that exist today. I say that because if there is no concrete and definitive meaning to the Constitution then any interpretation can be made, whether it is by those who hold a liberal or conservative view of the document and how it should be enforced. That position is the most threatening of positions to take, for a so-called “living Constitution” can be twisted to either legalize or criminalize anything that those in power at the time may decide is “right” or “necessary”.

Read the 2nd Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” What does it actually say? A good way to interpret any document is to first read the document before attempting to layer definitions upon it. The construction of the Amendment, while some claim is vague, is actually extremely explicit in both wording and meaning. If taken out of context it could be twisted and construed to mean any number of things, but in the context in which it was written and in the definitions of the words of that period there can be no other construction that would define it other than it provides for the Right of the People to keep and bear arms without infringement, the second part of the Amendment is necessary in order to give meaning to the first part of the Amendment. For without the Right of the People to keep and bear arms there would be no Militia, for the Militia depended totally upon the People and their Right to keep and bear arms.

Thomas Jefferson was a bright man, and he gave an extremely insightful and correct means of Constitutional construction and interpretation, we would do well to once again heed such wise advice:

“On every question of construction of the Constitution let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” Jefferson in a letter to William Johnson, June 12, 1823.

Once again, in order to understand the fullness of the meaning behind the 2nd Amendment it should be obvious to read the words of those who commented on it when it was introduced into the Constitutional Convention. The Framers of the Constitution were well aware of the policies of tyrants throughout history, and even contemporary tyrants that restricted the ownership of arms by the general populations of their respective kingdoms. So, it is necessary, once again to look to the words of those who knew exactly what the meaning of the 2nd Amendment was intended to mean. To ignore these words, as many obviously do, is the height of legal irresponsibility.

Here are a few of the words spoken at the Continental Congress, in contemporary newspapers and by those who should know exactly what they meant when they wrote the words used in the Constitution:

“No free man shall ever be debarred the use of arms.” Jefferson at the Virginia Convention

Jefferson made a comment in his Commonplace Book that apply fits the last 30 years of ill-conceived and failed gun policy in D.C.: “Laws that forbid the carrying of arms, disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Samuel Adams spoke to the Massachusetts Convention: “The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

In his paper published in the Philadelphia Gazette, Tench Coxe said: “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might prevent their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”

“To disarm the people, that is the best and most effectual way to enslave them” George Mason at the Constitutional Debates.

In 1789, Albert Gallatin, before the New York Historical Society stated pretty clearly about the meaning of the entire Bill of Rights: “The whole of the Bill of Rights is a declaration of the right of the people at large or considered as individuals…It establishes rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.”

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

"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." (Richard Henry Lee, Virginia delegate to the Continental Congress, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.)

"The great object is that every man be armed . . . Everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution.)

"The advantage of being armed . . . the Americans possess over the people of all other nations . . . Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in his Federalist Paper No. 46.)

During the Pennsylvania Constitutional Convention the following words were adopted: “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public inquiry from individuals.”

The Massachusetts Convention adopted these words: “…that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

The Vermont Convention: “That the people have the right to bear arms for the defense of themselves and the State.”

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined...The great object is that every man be armed. Everyone who is able might have a gun." Patrick Henry at the Virginia Convention.

In 1787, the Boston Herald American used the following words in describing the 2nd Amendment: “. The first policy of tyrants has been to annihilate all other means of national activity and defense, and to rely solely upon standing troops....”

The Connecticut Courant, in 1788 stated the following: “In countries under arbitrary government, the people oppressed and dispirited neither possess arms nor know how to use them. Tyrants never feel secure until they have disarmed the people. They can rely upon nothing but standing armies of mercenary troops for the support of their power. But the people of this country have arms in their hands; they are not destitute of military knowledge; every citizen is required by law to be a soldier; we are marshaled into companies, regiments, and brigades for the defense of our country. This is a circumstance which increases the power and consequence of the people; and enables them to defend their rights and privileges against every invader.”

The Pennsylvania Gazette put it in these very succinct terms: “While the people have property, arms in their hands, and only a spark of a noble spirit, the most corrupt congress must be mad to form any project of tyranny.” 1788

In the Town Meeting in Preston, Connecticut, the Town give the following instructions to the Connecticut Convention: “It is our ardent wish that an efficient government may be established over these states so constructed that the people may retain all liberties, privileges, and immunities usual and necessary for citizens of a free country and yet sufficient provision made for carrying into execution all the powers vested in government. We are willing to give up such share of our rights as to enable government to support, defend, preserve the rest. It is difficult to draw the line. All will agree that the people should retain so much power that if ever venality and corruption should prevail in our public councils and government should be perverted and not answer the end of the institution, viz., the well being of society and the good of the whole, in that case the people may resume their rights and put an end to the wantonness of power. In whatever government the people neglect to retain so much power in their hands as to be a check to their rulers, depravity and the love of power are so prevalent in the humane mind, even of the best of men, that tyranny and cruelty will inevitably take place.”

Sorry, but I would much rather place my trust in the words of those who actually crafted the Constitution.

RS, you're a gem.
Many thanks.

I appreciate the approach, RS[, and it is important to look to the sources, however, I feel compelled to note that you have only provided sources from one side of the equation. That is one of the inherent problems with approaching any legislative interpretation, because thoughts of individuals may have informed their particular decision to support the language, but it does not demonstrate the thought of the whole, as each legislator formed their own opinions. It is also important to note changes in wording of legislation as it is proposed, debated, changed, and finalized. In this case, again, the legislative history is fairly sparse, but not nonexistent.

The debate over the meaning of the Amendment, while longstanding, is of relatively recent origin. One of the problems I have always had in researching and drawing a conclusion with regard to the answer, unfortunately, apparently including the current decision, is that explanations are almost always determined by the existing opinion of the author. I've found neither determination convincing, as anti-gun control advocates like the NRA completely elide the first clause "a well-regulated militia being necessary," while control advocates over-emphasize it to draw an equally flawed conclusion. My position has evolved over time.

An intriguing new look at the question - and a well-researched and different conclusion - is drawn by Saul Cornell in his new book A Well-Regulated Militia
The Founding Fathers and the Origins of Gun Control in America . I am picking up a copy this afternoon, so I can report on it more fully later, but the book description is as follows: Oxford University Press The reason I am seeking the book out is that it speaks to the very internal debate I have long had over the issue, and seems to answer the very question I have always had - although I believe it is an "individual right," I have also always believed that it is intimately tied to the States' interests in maintaining a militia, since States have always had the right to regulate gun ownership free of 2nd Amendment constraints.

I think that it's essential for citizens to have the option as to whether or not to bear arms.

However, the court, as I've read the opinion has injected something like "equal access"...which doesn't give an open ended means to obtain guns. Each state does impose requirements that should bacially offer equal access via their licensing and in some states like Texas having to attend 140 hour school to carry a concealed weapon.

Some might say that because of the expense of the required school and licensing cost..that in someway is infringing on equal access.

Im not a gun person, but I think maintaining the right to own and bear arms is absolutely essential.

I personally don't want the SCOTUS to be rewritting the Constitution either. As far as I'm concerned the 5/4 decision needs to be a wakeup call to us all about how fragile our Constitutional rights are. That is a big part of this decision for me.

IMO, the reference to militia provides a highly important (in framer's view) basis/context for the right to own guns. Important as it was, the militia clause was not necessarily the exclusive basis for that right.

IMO, the framers understood the right to bear weapons was not absolute. The non-absolute character of the right was also incorporated into the militia clause in the phrase "well regulated militia." If the right to own a gun was totally without encumbrance, then even militia could not be regulated. For example you will never see a reference to a well regulated press, or well regulated religious practice. This despite the fact that even in those two example there are some degree of regulations that do pertain.

So, I think the framers are saying... yes, the citizens have a right to bear arms... here is a clear example of the need for that right.... and even within that example we acknowledge that the "right" is not without it's limits.

And ultimately, IMO that SCOUS ruling goes pretty much along that same line.... saying yes there is a right... but also the right is not entirely free of all restraint.

Thanks Ardy. It does seem that some sort of obligation is being asked of the citizens for the granted right to bear arms. But the Militia Act of 1903 created the National Guard thereby eliminating the need for state militias. So now we have the right to own guns with no obligation to be on call to serve in a state militia. What would a replacement obligation be?

Many say citizens need to be armed to protect against tyranny of an overbearing federal government. I find this argument a little disingenuous. I think the real reason is that for most, they like to hunt, they feel protected from other people by possessing a firearm, and just like to shoot their guns for fun. There is nothing wrong with that as long as their guns are not being aimed at other innocent human beings, and for that we have laws.

As far as stopping potential government tyranny—come on—imagine sitting at home with your choice of rifles and handguns and coming up the street is an Army M1A1 Abrams tank supported by Blackhawk helicopters and an Air Force AC-130H/U Gunship. Are you really going to stop that with your tiny arsenal?

But have no fear gun lovers. In this day of instant communications and the internet, any attempt at disarming the American public would be a fools errand at best IMHO.

---I can see the logic in that.
I'm only worried that there is no one restraining the restrainers.

Jeff H in Occupied TX

---The Iraqis had pretty good luck for the last few years!
But seriously, I am more concerned about protecting my family from the maniacs who will be roaming the countryside when the digested food matter strikes the rotational air output device.

Jeff H in Occupied TX