The citations within this discussion provide to those who are interested a quick overview of the key issue in the latest debate over gun control. This issue was raised, again, by the mass murder of two dozen children and half a dozen adults in the Sandy Hook school in Newtown, Connecticut, which the gun grabbers are now trying to exploit as the excuse to drive the final nail into the coffin of our once-extensive civil liberties.
2. The March of History
If you have any doubts about the intentions of the gun grabbers, just look in the news reports about the agenda that Obama assigned to Joe Biden, or the pronouncements of the governor of New York about forced sale to or outright confiscation of weapons now lawfully in the hands of the people.
For a review of the such efforts, see History of gun control is cautionary tale for those who want more regulations – The Washington Post and Are We Going Avoid Reality in the Gun Control Debate?
You don’t have to be an obsessive student of history to know that EVERY time a people were disarmed, the people became ENSLAVED by their OWN government; glaring examples include Nazi Germany; Soviet Russia and its communist satellite “allies” in Eastern Europe, Cuba and Africa; China and its satellites in Southeast Asia. Between them these governments had murdered hundreds of millions of their own people in the name of “social justice.” See Lt.Col. Allen West to NRA: An armed man is a citizen; a disarmed man is a subject » The Right Scoop.
You don’t have to pay serious attention to the daily news to know how fast our constitutional rights have been eroded in recent decades. Just since 9/11, we had the “Patriot” Act, the DHS, the TSA; security cameras everywhere, warrantless monitoring of our e-mails, cell phones, travels and financial transactions; more and more blatant voter fraud, reverse racism, reverse sexism, politically correct speech; politicized law enforcement, politically biased news and entertainment. They are rewriting our very history (for an example, see War of Necessity; The anti-anti-communist perspective on anti-communism and the Cold War, from the Weekly Standard). Don’t forget the “bail-outs” and take-over of entire industries, obamacare, militant environmentalism, endless massive new ever more intrusive and ever more expensive regulations, the destruction of the money through endless “quantitative easing,” the “fiscal cliff,” and now, Joe Biden’s task force on gun control, just to name a few. They are politicizing and regulating the minutest details of our daily lives, they are using the best of our technological inventions to rip the last tatters of our privacy to shreds. Merry Christmas, ho, ho, ho.
Accordingly, defenders of Second Amendment rights often cite the need of the people to be armed so they can defend themselves against a federal government spinning out of control and assuming the ultimate of totalitarian dictatorial powers against its own people. They mention proclamations to this effect as part of our very founding. Silly me, I assumed that a matter of such importance would have been discussed in the Federalist Papers, but alas, the only one I could find on this topic is no. 29, written by that federalist Alexander Hamilton, who used the occasion to present an argument for strong FEDERAL control of the STATE militias. Forget individual rights in that one… Paradoxically, he WAS a champion of individual rights in all other contexts, except the single most fundamental one, without which the others are not possible, which is self defense. The Founders’ statements on militias and the right of self defense are documented elsewhere.
3. The Militia as the Deterrent to Tyrannical Government
The reason for the militia and therefore the right to keep and bear arms is found in the debates in Congress when the 12 amendments known as the Bill of Rights were passed. James Madison discussed how a militia could help defend liberty against tyranny and oppression (from Militia (United States) – Wikipedia):
The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”- (Source I Annals of Congress 434, June 8, 1789)
4. The Right to Bear Arms as the Individual Right of Self Defense
The right to keep and bear arms, which is protected under the second amendment, is often presented in the context of military service and the broader right of self defense. Whether this right pertains to individuals acting independently or the people acting collectively has been the topic of several Supreme Court decisions. On June 26, 2008, the Supreme Court of the United States, in a 5-4 decision, held that residents of the District of Columbia have an individual right to handguns for self-defense within the home in the case District of Columbia v. Heller while at the same time reaffirming a broad range of federal restrictions on firearms as being constitutional. Also, the large body of state based law regarding the right to firearms and restrictions on firearms remain largely unchanged, though the Supreme Court ruled in the 2010 case McDonald v. Chicago that the right to keep and bear arms applies to state governments via the due process clause of the fourteenth amendment.
The people’s right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others. Though possessing arms appears to be distinct from “bearing” them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.
Don Kates, a civil liberties lawyer, cites historic English usage describing the “right to keep and bear their private arms.”
Sir William Blackstone wrote in the eighteenth century … about the right to have arms being auxiliary to the “natural right of resistance and self-preservation.”
Likewise, Sayoko Blodgett-Ford notes a non-military usage of the phrase in pamphlet widely circulated by the dissenting minority dating from the time of the Pennsylvania ratifying convention for the US Constitution:
“[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed…“
In commentary written by Judge Garwood in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:
There are numerous instances of the phrase ‘bear arms’ being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the ‘people’ [or ‘citizen’ or ‘citizens’] “to bear arms in defense of themselves [or ‘himself’] and the state,’ or equivalent words, thus indisputably reflecting that under common usage ‘bear arms’ was in no sense restricted to bearing arms in military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).
Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:
They argue that the Second Amendment’s words “right of the people” mean “a right of the state” — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The “right of the people” to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to “bear arms” relates only to military uses. This not only violates a consistent constitutional reading of “right of the people” but also ignores that the second amendment protects a right to “keep” arms. “When our ancestors forged a land “conceived in liberty”, they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men.”
5. How the Courts Ruled
The U.S. Court of Appeals for the D.C. Circuit … struck down provisions of the Firearms Control Regulations Act as unconstitutional. … The court then held that the Second Amendment “protects an individual right to keep and bear arms”, saying that the right was “premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” They also noted that though the right to bear arms also helped preserve the citizen militia, “the activities [the Amendment] protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”
The U.S. Supreme Court ruled in District of Columbia v. Heller (2008), No. 07-290, that
(1) “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
6. Final Comment
Note one interesting phrasing. United States v. Miller, 307 U. S. 174 “does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.” Pp. 47–54.
Well, well, well… our current version of the organized militia, the National Guard, carries fully automatic, 30-rounds-per clip M-16s and other versions of the M-4 class of individual weapons. Think about it… if THEY can have M-16s, so can WE? (No, no need to pinch me, I am fully awake.)
Yet the gun grabbers want to confiscate “assault weapons” such as the AR-15 which is only a semi-auto imitation of the M-16, they want to ban every other rifle and handgun which can accept a multi-round “high capaity” clip, and they want to ban the clips. The dishonesty in their argument is revealed in the fact that they also want to ban single-shot, bolt action rifles — because that is the classic definition of a sniper weapon; they want to ban shotguns because they can also fire slugs, not just birdshot, and they want to ban handguns because they can be concealed… In other words, THEY can prance around as they wish, protected by squads of bodyguards armed to the teeth, but we the people must remain defenseless against any madman looking for a target-rich, free-fire zone euphemistically called a “gun-free zone,” fully confident in the fact that there will be no one among the victims who will fire back, and he has plenty of time to satisfy his murderous cravings because when seconds count, the police are minutes away — 20 or 30 minutes away.
Footnotes from the citations
37. Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute. p. 8. ISBN 0-945999-38-0.
38. Schmidt, Christopher (February 2007). “An International Human Right to Keep and Bear Arms”. William & Mary Bill of Rights Journal (Williamsburg, Virginia: The College of William & Mary School of Law) 15 (3): 983
39. Kates, Jr., Don B. (November 1983). “Handgun Prohibition and the Original Meaning of the Second Amendment”. Michigan Law Review (The Michigan Law Review Association) 82 (2): 204–273. doi:10.2307/1288537. JSTOR 1288537. “In unmistakable individual right 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. (Emphasis in original)”
40. Blodgett-Ford, Sayoko (Fall 1995). “The Changing Meaning of the Right to Bear Arms”. Seton Hall Constitutional Law Journal: 101.
41. Merkel, William G.; Uviller, H. Richard (2002). The militia and the right to arms, or, How the second amendment fell silent. Durham, N.C.: Duke University Press. pp. 19, Chapter 9 (pages 212–225). ISBN 0-8223-3017-2
42. UNITED STATES v. EMERSON, No. 99-10331., October 16, 2001 – US 5th Circuit | FindLaw. Retrieved 2012-05-22.
43. Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.
I highly recommend you read this article in full, as it is a great review of the history of the government’s machinations regarding guns since our founding. But as thorough as the author of this article tries to be, he glosses over or omits some relevant facts and commits some glaring mistakes, some of which are pointed out in the comments under the article. Two important ones are:
1. “Well regulated” does not mean, as we tend to think of it today, stifled to the point of impracticality with government bureaucracy and controls. It more closely means well trained, well prepared, and as well organized and managed as is necessary to fulfill its purpose. It is this shift in the meaning of the words in public usage that leaks over to legal usage which gives the gun grabbers the hook they need to sway an uninformed public’s emotion-triggered opinion.
2. Gun registration ALWAYS leads to gun confiscation. The point is irrefutably logical. Before they come to get your guns, they need to know who has what — unless of course they arrogate to themselves the right to come into your house and ransack it without probable cause or a legal search warrant. So, using whatever excuse, government decrees that owners and weapons be registered. In 1792 the excuse was to make sure the militia is “well regulated.” More recently the excuse has been concealed carry permits. Today the governor of New York advocates forced buy-backs and confiscation; that is, making mere ownership a criminal act and thereby turning formerly law-abiding owners into common criminals.
We make so much fuss over the right to privacy (while we are busy shredding and erasing all hints of it); well, there is nothing more private than your means and ability to defend yourself, and I submit it is infinitely more important to keep this information private especially from the government than keeping a teen age girl’s abortion a secret from her parents.
Maybe there is no history of official gun confiscation in the US. But the history is unequivocal in other countries. No dictatorship can take hold as long as the people can resist effectively, and every single one of them has started out that way. It is precisely because the gun is the most effective means of self defense that no government or anybody else has any reason to keep records of what you might have at your disposal. A government FOR the people, not AGAINST the people, would confine itself to catching criminals, and not stray into making criminals of people who may choose to exercise the most fundamental of their constitutional rights. “The right of the people to keep and bear arms shall not be infringed.”
This article provides a useful review and an important reminder of recent mass shootings. However, it does not go back far enough, certainly not with the range of the personal memories of the baby-boomer and the “greatest” generations.
It also fails to list examples where mass murder was prevented because someone among the potential victims was armed and fired back at the shooter. Nevertheless, this article does make the important point, which is that when seconds count, the police are minutes away, and therefore YOUR survival depends on YOU, being able to defend yourself. No government, not even a totalitarian dictatorship such as the nazis and communists in recent history, is able to put an armed guard on every street corner, at every door and back door on every house, in order to provide 100% complete deterrence of crime. The practical fact is that your safety is in your hands and in the hands of those around you who are prepared to act when it counts the most. The only way to achieve that is if the government does not interfere with the “right of the people to keep and bear arms” — that is, to “pack” if that’s what it takes to make one safe, in one’s own judgement.
The deterrent to crime comes precisely from the certainty in the criminal’s mind that someone among his potential victims would be able to fight back, and the uncertainty as to who that would be — maybe his chosen victim or some passer-by. It is not the government’s job to relieve the criminal of this uncertainty with ill-thought-out nonsense such as “gun-free zones.” The government may try to replace the armed citizenry with draconian security measures to guarantee everyone’s safety, but that just begs the question, who will protect us from our protectors? That is why our Founders had the wisdom to say as plainly as they could, “The right of the people to keep and bear arms shall not be infringed.”