Intuitively, I had always believed that the 2nd Amendment protected my inherent right to keep and bear arms for my own personal safety; that this right was derived from “natural law” irrespective of any right to same which may have been specifically granted or denied by either the United States or any of the States.
Further, I had always believed that since the federal government was not specifically granted the right to restrict my right to self-protection, that, in accordance with the enumerated powers of Article 1, Section 8 of the Constitution, the federal government did not have the right to in any way deny my right to self- protection; that, similarly, since the right to self-defense is an inherently natural right that no State could abridge or otherwise deny that right as well.
In light of the recent District of Columbia v Heller (2008) decision in which SCOTUS struck down DC’s handgun ban as well as its ban on loaded, operable firearms for DC residents’ self-defense and the McDonald v City of Chicago case which protected the right to keep and bear arms from infringement by local governments, my curiosity got the best of me and I decided to explore the meaning of the 2nd Amendment for myself.
Briefly, this is what the Heller decision said: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and use that arm for traditionally lawful purposes, such as self-defense within the home” and “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” However, SCOTUS tempered its decision by allowing for “prohibitions against possession of weapons by felons or the mentally ill” or “carrying of firearms in sensitive places such as schools and government buildings”. In short, the Court ruled that the Amendment’s prefatory clause, i.e. “a well-regulated militia being necessary to the security of a free state”, serves to clarify the operative clause, i.e. “the right of the people to keep and bear arms, shall not be infringed”, but does not limit or expand the scope of the operative clause.
The first thing I discovered is that quite apart from the supercilious and intrusive world of social engineers who continually advocate a wholesale ban on privately owned guns without any allusion to constitutional justification, over the years there really has been a serious and honest difference of opinion among respected constitutional scholars as to the precise meaning of the 2nd Amendment, a difference which the Heller and McDonald decisions finally resolved for every American. While Heller has affirmatively addressed the 2nd Amendment right of citizens to keep and bear arms who reside within federal territories, the McDonald ruling extended that right to the local and state levels.
But, first, let’s very briefly highlight some authoritative, albeit contradictory, case law on this subject before proceeding further:
1. Barron v Baltimore (1833): held that the Bill of Rights applies directly to the federal government—not to state governments. In effect, the court ruled that states could infringe on the Bill of Rights since the Bill of Rights restrained only the federal government. (Don’t ask. I didn’t delve deeply into the reasoning behind this decision.)
2. Nunn v State of Georgia (1846): held that “the right of the people to keep and bear arms shall not be infringed” and that “the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed or broken in upon in the smallest degree.”
3. Cockrum v State of Texas (1859): ruled that “the right of a citizen to bear arms, in lawful defense of himself or state, is absolute. He does not derive it from the state government. It is one of the ‘high powers’ delegated directly to the citizen, and ‘is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” (Clearly, at some variance with Barron v Baltimore.)
4. 14th Amendment (1868): to address the possible oppression of freed slaves following the civil war and to ensure that former slaves, among other citizens, were able to Keep and Bear Arms for that purpose, Congress passed this amendment which provides that states may not “abridge the privileges or immunities of citizens of the United States” or “deprive any person of life, liberty, or property, without due process of law.” (If you can’t get there one way, try another route.)
5. The Slaughter-House Cases (1873): held that only those “privileges and immunities” that “owe their existence” to the US Constitution were protected; thus, the Bill of Rights didn’t apply to the states because the Bill of Rights protected basic human rights which existed before the ratification of the Constitution.
6. United States v Cruikshank (1876): clarified that the Right to Keep and Bear Arms existed before the Constitution but that the 2nd Amendment, indeed the 1st Amendment, were not protected from infringement by the states or by private individuals. (Here the court ignored the 14th Amendment and parroted Barron v Baltimore.)
7. Presser v Illinois (1886) and Miller v Texas (1894): held that the 2nd Amendment didn’t directly protect against infringement by the states.
8. People v Zerillo (Michigan, 1922): Ruled that “the provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff.”
9. Gitlow v New York (1925): ruled that the 14th Amendment prohibited states from violating some of the rights of citizens without “due process” but stopped short of “incorporating” all of the Bill of Rights at once.
10. Since Gitlow, and only on a case by case basis, courts have held that on the strength of the 14th Amendment’s “Due Process Clause”, the Bill of Rights is protected against state infringement. In effect, the Bill of Rights has been “incorporated” into the Due Process Clause vide the generally accepted Theory of Substantive Due Process. (Note: today, the 2nd Amendment is one of the last rights in the Bill of Rights to be incorporated.)
11. District of Columbia v Heller (2008): the court ruled that the Cruikshank decision failed to properly weigh 14th Amendment protections and that “the inherent right of self-defense has been central to the Second Amendment right.”
So, though most states protect the individual right to keep and bear arms, the McDonald v City of Chicago ensured that the full force of the 2nd Amendment extended to all localities as well. Particularly in those states where there are no state constitutional safeguards, plaintiffs are especially concerned. Without 2nd Amendment rights to keep and bear arms, gun owners are at the mercy of state legislators, social engineering lobbyists and the like.
But, what’s behind the McDonald challenge? In short, the Illinois state constitution states that “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” By failing to “incorporate” 14th Amendment inquiry as was required by Heller, in June 2009 the 7th Court of Appeals reaffirmed Illinois’ power to ban handguns by relying solely—and erroneously—on the Cruikshank decision of 1876, thereby ignoring nearly all other pertinent case law as well.
By contrast, earlier, in April 2009, a three-judge panel of the 9th Circuit (Nordyke v King) in California concluded that since “the Right to Keep and Bear Arms is deeply rooted in this Nation’s history and tradition,” that this right is, therefore, “incorporated” into the 14th Amendment Due Process Clause and applies to the states.” This decision was on hold awaiting a SCOTUS decision on the McDonald v City of Chicago case. Thus, we had two appellate courts and two divergent views in the same year. The earlier decision relied upon the 14th Amendment as required by Heller and the panel opinion relied upon Cruikshank which had been overruled by Heller. (How mortal jurists be?)
So, owing to the contradictory case law subsequent to the US Constitution’s adoption in 1787, I opted to simplify my inquiry by examining what our framers had to say about all this. Being the real experts, their correspondence and debates carry considerably more weight for me than do contemporary interpretations from either the left or the right.
First, the 2nd 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.”
Like all things constitutional, context is absolutely everything, and both logic and a studious level of caution dictate that the expressed intent of the framers should always take precedence over what might be faulty subsequent interpretation. And rather than weighing and examining a dizzying array of contradictory interpretations, I have found solace by relying upon an “originalist” approach to better capture the meaning of the framers in this regard. It just seems eminently more sensible and the least painful path to follow.
Bearing in mind Thomas Jefferson’s admonishment that “on every question of construction 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”, any conclusions as to the framers’ intent and, thus, the meaning of the 2nd Amendment, will be left to the objectivity and integrity of the reader.
From what I have read, the intended purpose of the 2nd Amendment was to guarantee the right of the people to keep and bear arms as a check on the standing army and any foreign armies. To wit, Noah Webster and Tench Coxe, the latter an ally and correspondent of James Madison, admonished that “before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.” Similarly, George Mason warned that “the colonies’ recent experience with Britain”, in which King George’s goal had been “to disarm the people…was the best way to enslave them.”
Further, it appears that the overarching purpose of the Bill of Rights, the first ten amendments of the Constitution, was to better ensure private rights by specifically proscribing federal violations of those rights. Thus, in short, “well-regulated militia” did not at all mean Congressional regulation of that militia or, by extension, the regulation of the people’s right to keep and bear arms. Also, the text of the Amendment expressly confirms that the right to keep and bear arms is retained “by the people”, and not the states. Important to note too is that whenever the word “regulate” appears within the Constitution’s text, the Constitution specifies who is to do the regulating and what is being regulated. However, in the 2nd Amendment the term “well regulated” describes a militia—not an army reserve or national guard--but does not define who or what regulates it. Thus, from what I could understand, the framers intended that the people comprise an essentially unorganized militia which may, of necessity, be organized and well regulated, but by the people themselves.
This view is confirmed by Alexander Hamilton (Federalist, No. 29): “…but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights…” Thus, it also appears to have been clearly intended by the framers that law-abiding armed citizens could collectively organize and train and that doing so would not necessarily pose a threat to their fellow citizens, but would, in fact, help “to ensure domestic tranquility” and “provide for the common defence”.
But, rather than further wading through a plethora of interesting, albeit esoteric, and often contradictory opinions let’s take a brief look at some notable quotes of the framers themselves to better understand their meaning and intent with respect to the 2nd Amendment. It’s just more edifying—for me anyway:
1. “No freeman shall ever be debarred the use of arms…” Thomas Jefferson
2. “The people have the right to bear arms for the defense of themselves and the state…” Pennsylvania Declaration of 1776
3. “Americans have the right and advantage of being armed—unlike citizens of other countries whose governments are afraid to trust people with arms.” James Madison, Federalist Paper #46
4. “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams, 1787
5. “The right of the people to keep and bear arms shall not be infringed. A well- regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country…” James Madison, 1789
6. “…the ultimate authority…resides in the people alone.” James Madison
7. “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people.” Tench Coxe, 1788
8. “The militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms.” Richard Henry Lee, 1788
9. “The Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping and bearing arms.” Samuel Adams, 1788
10. “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.” Richard Henry Lee, 1788
11. “The best we can hope for concerning the people at large is that they be properly armed.” Alexander Hamilton
12. “And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance?” Thomas Jefferson
13. “The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” Thomas Jefferson
14. “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence…To ensure peace, security and happiness, the rifle and pistol are equally indispensable…The very atmosphere of firearms everywhere restrains evil interference…When firearms go, all goes. We need them every hour.” George Washington
While there are also many luminaries, like Einstein, Machiavelli, Ayn Rand, Blackstone, et. al, who celebrate the individual right to keep and bear arms, there are notable detractors as well:
1. “Gun registration is not enough; the most effective way of fighting crime in the United States is to outlaw the possession of any type of firearm by the civilian population.” Janet Reno. Atty General, 1991
2. “Our task of creating a socialist America can only succeed when those who would resist us have been totally disarmed.” Sara Brady, Chairman, Handgun Control, 1994
3. “…Our ultimate goal—total control of all guns—is going to take time. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered, and the final problem is to make possession of all handguns, and all handgun ammunition totally illegal.” Nelson Shields, Handgun Control
4. “What good does it do to ban some guns. All guns should be banned.” Sen. Howard Metzanbaum, 1994
5. “Citizens! Turn in your weapons.” (English translation of Soviet Union poster 1919.)
FYI: Current US Code defines militia like this: “The militia of the United States consists of all able-bodied males at least 17 years of age. The classes of the militia are (1) the organized militia, which consists of the National Guard, and (2) the unorganized militia, which consists of the members in the militia who are not members of the National Guard.” Title 10, Section 311(a) of the United States Code.
And, finally, no discussion of the 2nd Amendment can be properly wrapped up without this incisive quote from Thomas Jefferson: “False is the idea of utility that sacrifices a thousand real advantages for one imaginary of trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evil, except destruction. The laws that forbid the carrying of arms are laws of such nature…Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man…”
So, there you have it. Shouldn't the Framers’ understanding of the 2nd Amendment be rendered more authoritative than the stream of conspicuously contradictory legal opinions which followed over the years? The age-old controversy. As said, for me the Framers’ clearly stated opinions as to their meaning and intent necessarily hold sway.
POSTSCRIPT:
Currently under serious assault by Progressives at both the federal and state levels, the inviolabilty of the 2nd Amendment hangs in the balance. Pushback is widespread, and already there are hundreds of Sheriffs who refuse to obey these unconstitutional infringements on the right of the people to keep and bear arms. Many States have taken action to nullify federal gun control laws. Stay tuned. This could get very messy.
Comments
I amend my last statement, according to the Constitution everyone does have the right to open or concealed carry and again the current gun laws and restrictions are illegal.
You know with all the debate, there is a very simple answer! If the bad guys had no idea who was armed and who was not. It would certainly give them pause before they decided to commit a crime? They might get themselves killed? To simplify this everyone should have the right to concealed or open carry . In the wild west days every one or most every one carried his rifle or his pistol on his hip. If you had a beef with someone you had to think long and hard about if you should go there or not. It was Sam Colt who said that god didn't create all men equal he did.
If you know any one that doesn't own a gun and a rifle. NO MATTER WHAT THERE AGE IS.
Help them to purchase them and learn to use them. Start up gun club in your area.
Jim,
Nice article.
A bit long, but worth it, as are some replies.
I will share it.
Please offer your thoughts on ..."shall not be infringed" ?
I am confounded by the limits of argument about .... shall not be infringed.
At one end is Registration, Concealed Carry Licensing, FFLs, etc
They are ALL infringements that I strongly protest... but somehow we got stuck with them.
At the other end IS a social problem...restrictions on felons, mentally impaired.
These too are ALL infringements... but somehow my protest is weaker.
What is the solution?
Total strict reading of ...shall not be infringed; and everybody/anybody can carry open or concealed?
..... or some "middle" ground?.... with all its ambiguities and ongoing lawsuits plus efforts at further infringement?
THAT is something I find NOT discussed.
Your, anybody, thoughts?
Linda, You are not alone - I have thought something smelled bad from the Sandy Hook event and is continuing.
We have take action.
This is a good information. Spead the information.
You friends and family have to know this. So when things go bad they understand. What to do.
Start displaying LED lite crosses and Amercia flags year around.
Have your copys of theConstitution, Federalist papers and the Bible on you at all times.
Understand the enemy and who they are. Go to the schools and educate the young of what there loosing.
am I the only one out there thinking that the recent spate of school shootings is orchestrated to keep the low informed voter riled up to support gun control? (Just heard there's been another in Atlanta)
This is a great read! Is this group supporting the February 23, 2013 rally?
http://www.dayofresistance.com/
Proof that the 2nd Amendment is a Guarantee xProtected Right.
Feinstein has never understood the Genesis of the Bill of Rights.
Debates on the Bill of Rights
House of Representatives, Amendments to the Constitution 8 June , 21 July , 13 , 18-19 Aug. 1789
Annals 1: 424-50, 661-65, 707-17, 757-59, 766
“So far as to satisfy the public mind that their liberties will be perpetual”, The Bill of Rights is perpetual as Mr. Madison argues during the Amendment to the Constitution debates on the Bill of Rights meaning; lasting forever, indefinitely, continuous, permanent, eternal or uninterrupted. Our government has completely reversed its self from the true meaning of liberty, freedom, unalienable, and indefeasible rights. The Bill of Rights is not to be infringed by any federal statues, court misinterpretation by legislating by the bench or by public pressure. They are guaranteed protected rights, and Government has sworn to protect and defend the Bill of Rights; it is Government(s) first line of duty requirement. Has Congress lost touch with the meaning of the Rule of the Law?
All “gun ban” “disqualified” that has been passed in 1968 to 1996 violates the rule of the law in the restriction clause: One Constitutional mandate is in ''Article One, Section Nine, Paragraph, 3., which states, ”No bill of attainder, or ex post facto law shall be passed.'' Several cases involving bills of attainder have been adjudicated. Two distinct meanings of the phrase 'bill of attainder' have been established, one being a bill of attainder proper, which is a law permitting the death of a person, without a trial.
The other aspect of a bill of attainder is related to the aspect of the ''doctrine of pains and penalties.'' This type of mandate virtually strips or “disqualified” a citizen of rights, outlawing him, confiscating his property, and denying 'due process' under the law. In the words of Frederic Bastia, bills of attainder are, ''laws that plunder, life, liberty and property.'' (See; ''The Law, Bastiat, Foundation for Economic Education, 1996.) Too many laws today violate the premise of liberal democracy, and fall into the destructive category of being acts of ‘legalism.’ The destructive force of legalism was recognized hundreds of years before America became a Republic. Gun ban and the 1968-1996 gun “ban” falls within this destructive force acts of “legalism” on the Bill of Rights.
In Cummings v. Missouri (1867), states "A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment." (Cited in the USC, as defining cases.) This includes the despicable Lautenberg gun ban 1996. The growing corruption in the legislature, and judiciary reflect a trend to base all American law upon the tyranny of 'Legalism.' The right of private property for the people to retain property above the right of the government to take it without permission has been systematically stripped from American rights.
Gun ban, Semi-Auto ban, Military Type gun ban and the 1996 “disqualified” gun “ban” has the same language that was used in the Nazi Weapons Law of 1938 and is compared side-by-side with the U.S. Gun Control Act of 1968.
The question has been asked, why do they need an Military type assault rifles, semi-auto weapons with large large-capacity rounds? Answer, In the hands of a God fearing American Patriots will protect America, Freedom the Bill of Rights and their guns. It is a known fact that enemies that want to attack on America soil could never accomplish it because between our military and armed citizens of America would protect her. Do you have a problem with that?
I asked you, who is in violation of the supreme law of the land? Who is dishonoring a Constitutional requirement? Who is acting in conspiracy against rights? What sworn officer of the law would enforce a repugnant law? Who is acting under misconstruction of office?
We the People Gun Owners of America say, “NO more infringing on the 2nd Amendment”. No new gun laws!! Honor your Oath!
No doubt whatsoever in my mind. It's intent was to protect us from the corrupt government our forefathers saw possible and that is now here.
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