The 2nd Amendment
Subject
The Resurrection of the 2nd Amendment
By Peter Alan Kasler
The 1980s have seen enormous new research on the origins of the constitutional right to arms. As a result, it is no longer intellectually credible to deny that the Second Amendment guarantees to every responsible, law-abiding adult the right to own handguns, rifles, and shotguns. These days the only people who deny the individual right to arms are the under- or ill-informed and the antigun lobby. They dismiss the right afforded by the Second Amendment as a "collective right," claiming that it is a "right" which cannot be asserted by individuals for themselves or on behalf of the people collectively. This is, of course, nonsense A right that no one can enforce is no right at all. The meaningless "collective right" concept violates Chief Justice Marshall's basic rule of interpretation that it may not be presumed "that any clause in the Constitution is intended to be without effect."
Typical of the anti-Second Amendment argument is a guest editorial in the New York Times entitled "What Right To Bear Arms?" It was written by a young man named Abrams whose only stated qualification was that he was about to graduate from college and had been accepted into law school. He is, in fact, the son of the Times' lawyer.
Disagreement with Mr. Abrams by qualified constitutional scholars was not long in coming -- the most important a letter to the Times by Robert Cottrol, a liberal black legal historian then at Boston College School of Law, and other law professors and eminent constitutional historians. The only conservative cosigner was Charles Rice, Professor of Constitutional Law at Notre Dame Law School. Conspicuous liberal cosigners of Cottrol's letter included Akhil Amar of Yale Law School and Sanford Levinson of the University of Texas. Ray Diamond, a black law professor and legal historian at Louisiana State Law School, and historians from UCLA and two ultraliberal colleges, Reed and Kenton. A particularly significant cosigner was Daniel Polsby, a law professor at Northwestern University Law school. Polsby is significant because a decade ago he was quoted ridiculing the Second Amendment by Chicago Sun Times columnist Mike Royko.
Since then, Professor Polsby has studied the issue and reviewed the scholarly literature of the 1980s. As a result of that effort Polsby has reversed his position, even to the extent that he co-authored (without compensation) an Amicus Currie (Friend of the court) brief in support of the National Rifle Association's position in attacking California's Roberti-Roos Assault Weapon Control Act. The amici in that action are the American Federation of Police, the Congress of Racial Equality (the black civil rights organization which supported Bernhard Goetz), and the Second Amendment Foundation.
Predictably, the very antigun New York Times refused to print this letter by eminent academics which demolished its student editorialist and acknowledged the Second Amendment's guarantee of the individual's right to arms.
What convinced all these professors and scholars was the large amount of research on the Amendment that has appeared in the past decade. Perhaps the most important is direct legislative history. The written analysis before Congress when it enacted the Bill of Rights said of the Second Amendment: "the people are confirmed in their right to keep and bear their private arms."
The fact that the Amendment is phrased "right of the people" is emphasized by Professor Kates, probably the most authoritative scholarly writer on the Second Amendment, who notes that that phrase is used in every other Amendment to mean an individual right: "Clearly, having used that phrase for a personal right in the 1st Amendment, (collective) right just 16 words later in the 2nd Amendment -- and then revert to the personal rights meaning 46 words later in the 4th Amendment, and so on"
The Founding Fathers believed that only an armed citizenry could preserve free government. Such thinking was consistent with a political philosophy dating back to Aristotle, who said tyrants "mistrust the people, hence they deprive them of arms." The lesson was emphasized by the British attempt to confiscate the Patriots' arms at Lexington and Concord. As the Virginia patriot George Mason put it: "to disarm the people, that is the best and most effective way to enslave them."
The Founding Fathers' beliefs flowed from those of a British philosopher, John Locke, who felt that government will become ever more oppressive unless checked by fear of an armed people. Moreover, Locke argued that having an armed populace would actually avoid bloodshed. He said that a government unrestrained by fear of an armed populace would tend to tyrannize so that even an unarmed people would revolt. Then there would be a true blood bath, as occurred not long ago in Rumania. Locke and the founding Fathers believed an armed citizenry to be the first and foremost insurance against unendurable tyranny. To paraphrase Trenchard (a follower of Locke who was also much admired by the Founding Fathers), an armed people, like a strong man carrying a sword, will find the sword grows rusty in its sheath because it will never have to be drawn. Thus James Madison, author of the Second Amendment, tells us that tyranny would not occur here because of "the advantage of being armed, which the Americans possess over the people of almost every other nation."
Among the most important research in the 1980s was that of Professor Joyce Malcolm, a legal historian whose work on the English and American origins of the right to arms has been sponsored by the American Bar Foundation, Harvard Law School, and the National Endowment for the Humanities. Her research reveals how deeply l8th Century Englishmen and Americans cared about their legal right to arms. Blackstone (the l8th Century English authority on the common law, whose work forms the basis for much of American common law) held that there was an "absolute right of individuals" to possess arms.
The right is not outdated today. In fact, no 20th Century army has ever defeated a populace that had access to small arms. That's how, after all, nations such as Algeria, Angola, Ireland, Israel, Mozambique, and Zimbabwe came to be. That's why the USSR left Afghanistan, the U.S. left Viet Nam, and the French left Indochina, and why Chiang, Somoza, and Battista left China, Nicaragua, and Cuba, respectively.
For further evidence of the new recognition of the "individual rights" view of the Second Amendment, consider the turnabout by an eminent liberal constitutional theorist, Sanford Levinson. His recent Yale Law Journal article is titled The Embarrassing Second Amendment because he found it impossible to sustain his former belief that private gun ownership can be constitutionally prohibited and all guns confiscated.
Another eminent liberal is Michael Kinsley, former Editor-In-Chief of The New Republic (one of the nation's leading liberal publications), who moved down to the position of contributing editor in order to become the liberal commentator on the TV debate program Crossfire.Staunchly antigun, Kinsley is a member of Handgun Control, Inc. But in a recent nationally-syndicated article he admitted that the evidence demonstrates the individual right to have guns embodied in the Second Amendment. Quoting a New Republic colleague, Kinsley said: "If liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory" Nevertheless, Kinsley still dislikes guns and wishes the Constitution did not guarantee responsible adults the right to own them.
Professor Levinson has come considerably further. His Yale Law Journal article articulates not only his new recognition that the Second Amendment guarantees the individual's right to arms, but also that he now sees the importance of an armed people:
". . . it seems foolhardy to assume that the armed state will necessarily be benevolent. The American tradition is, for good or ill, based in large measure on a healthy mistrust of the state ... it is hard for me to see how one canargue that circumstances have so changed as to make mass disarmament constitutionally unproblematic ... a state facing a totally disarmed population is in a far better position, ... to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officers being injured or killed."
It is heartening to see so many liberal scholars honestly acknowledge what gun owners have long known about the Second Amendment. Now all that seems left is for the nation's media to follow suit.
By Peter Alan Kasler
Check here (104th vote) to see the Representaives that violated their Oath of Office. Each one should be removed from office for Perjury, (Title 18 U.S.C. §1621).
Let's take a look at what the Founding Fathers legislative history and the Intent of the 2nd Amendment.
H.R. Journal--FRIDAY, AUGUST 21, 1789
Journal of the House of Representatives of the United States, 1789-1873
FRIDAY, AUGUST 21, 1789
The House resumed the consideration of the amendments made by the Committee of the Whole House to the report from the committee of eleven, to whom it was referred to take the subject of amendments to the Constitution of the United States, generally, into their consideration; and, the said amendments being partly agreed to, and partly disagreed to,
The House proceeded to consider the original report of the committee of eleven, consisting of seventeen articles, as now amended; whereupon the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth articles being again read and debated, were, upon the question severally put thereupon, agreed to by the House, as follows, two-thirds of the members present concurring, to wit:
· 5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
On motion,
Ordered, That the farther consideration of amendments to the Constitution of the United States be postponed until tomorrow.
The orders of the day for the House to resolve itself into a Committee of the Whole House on the bill sent from the Senate, entitled "An act to establish the Judicial Courts of the United States;"
And then the House adjourned until tomorrow morning eleven o'clock.
Journal of the House of Representatives of the United States, 1789-1873
APPENDIX.
Ratification of the Constitution of the United States, by the State of North Carolina.
United States, January 11, 1790.
Gentlemen of the House of Representatives:
I have directed Mr. Lear, my private Secretary, to lay before you a copy of the adoption and ratification of the Constitution of the United States, by the State of North Carolina, together with a copy of a letter from his Excellency Samuel Johnston, President of the Convention of said State, to the President of the United States.
The originals of the papers which are herewith transmitted to you, will be lodged in the office of the Secretary of State.
G. WASHINGTON.
"Fayetteville, State of North Carolina, December 4, 1789.
"Sir: By order of the Convention of the People of this State, I have the honor to transmit to you the ratification and adoption of the Constitution of the United States by the said Convention, in behalf of the People.
Ratification of the Constitution by the Convention of the State of Rhode Island and Providence Plantations.
"We, the Delegates of the People of the State of Rhode Island and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately considered the present situation of this State, do declare and make known:
· Seventeenth. That the People have a right to keep and hear arms; that a well regulated militia, including the body of the People capable of bearing arms, is the proper, natural, and safe defence of a free State; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection; that standing armies in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates in such manner as the law directs. · Eighteenth. That any person religiously scrupulous of bearing arms, ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.
Article the Fourth. 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.
Journal of the House of Representatives of the United States, 1789-1873
FRIDAY, AUGUST 21, 1789
The House resumed the consideration of the amendments made by the Committee of the Whole House to the report from the committee of eleven, to whom it was referred to take the subject of amendments to the Constitution of the United States, generally, into their consideration; and, the said amendments being partly agreed to, and partly disagreed to,
The House proceeded to consider the original report of the committee of eleven, consisting of seventeen articles, as now amended; whereupon the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth articles being again read and debated, were, upon the question severally put thereupon, agreed to by the House, as follows, two-thirds of the members present concurring, to wit:
In the House of Representatives,
January 18th, 1790.
The House took into consideration the report of the committee to whom was referred the resolution of the Congress of the United States, of the fourth day of March, one thousand seven hundred and eighty-nine, proposing Amendments to the Constitution of the United States, viz:
• Sec. 18. And be it further enacted, That inasmuch as the Constitution of United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; 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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed.
James Madison: "The right of the people to keep and bear arms shall not be infringed".
...Second Amendment to the U.S. Constitution...unrestricted right to bear arms is essential to..
Pennsylvania's 1776 Constitution declared: "That the people have a right to bear arms for the defence of themselves and the state. . . ." Vermont's Constitution of 1777 similarly proclaimed: "That the people have a right to bear arms for the defence of themselves and the State. . ." The Vermont Constitution of 1786 retained the same individual rights...
INFRINGE
(a) --tr. 1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent. 2. Obsolete. To defeat; invalidate. --intr. To encroach on someone or something; engage in trespassing: to neglect to obey; as to infringe a law; an increased workload that infringed on his personal life. [Latin ºnfringere, to destroy : in-, intensive pref.; see IN-2 + frangere, to break; see bhreg- below.] --in?fring“er n.
What part of "INFRINGED" don't they understand?
"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
-- Adolph Hitler, Hitler's Secret Conversations 403 (Norman Cameron and R.H. Stevens trans., 1961)
What the Framers said about our Second Amendment
Rights to Keep and Bear Arms
* "Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as 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 article in their right to keep and bear their private arms."
-- Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution
* "The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188
* If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
-- Alexander Hamilton, Federalist No. 28
* "That the said Constitution shall never be 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 ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)
* "[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46
* "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
--John Adams, A Defense of the Constitutions of the United States 475 (1787-1788)
* "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
--Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).
* "Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
--Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
* "Whereas, 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; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
--Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
* "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356
* "No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950]
* "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, I Annals of Congress 434, June 8, 1789
* "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
-- Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789
* " ... to disarm the people - that was the best and most effectual way to enslave them."
-- George Mason, 3 Elliot, Debates at 380
* " ... 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 ..."
-- Alexander Hamilton speaking of standing armies in Federalist 29
* "Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our 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 them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-- Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836
* "The great object is, that every man be armed ... Every one who is able may have a gun."
-- Patrick Henry, Elliot, p.3:386
* "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone ..."
-- Patrick Henry, Elliot p. 3:50-53, in Virginia Ratifying Convention demanding a guarantee of the right to bear arms
* "The people are not to be disarmed of their weapons. They are left in full possession of them."
-- Zacharia Johnson, delegate to Virginia Ratifying Convention, Elliot, 3:645-6
* "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible."
-- Hubert H. Humphrey, Senator, Vice President, 22 October 1959
* "The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation of power by rulers. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally ... enable the people to resist and triumph over them."
-- Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, p. 3:746-7, 1833
* " ... most attractive to Americans, the possession of arms is the distinction between a freeman and a slave, it being the ultimate means by which freedom was to be preserved."
-- James Burgh, 18th century English Libertarian writer, Shalhope, The Ideological Origins of the Second Amendment, p.604
* "The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."
-- Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]
* "And that the said Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.... "
--Samuel Adams
