Author: Nancy Ward Title: The Original Intent of the Second Amendment. Date: 12/94
ORIGINAL INTENT OF THE SECOND AMENDMENT
This paper begins with a discussion on the original intent of the Second Amendment from the viewpoint of our Founding Fathers. Next, the term "militia" is defined from the historical context of its usage in the Bill of Rights. Thirdly, the 1939 Supreme Court case of Miller v. U.S. will be reviewed in relation to the subject, and finally, the paper concludes with a look at gun control as not only an ineffective way controlling crime, but as unconstitutional in theory.
The Founding Fathers who established this nation were highly educated and many were students of Greek, Hebrew and Latin which enabled them to read the classics from their original languages. They were considerably influenced by biblical history as well as Greek, Roman, European and American history. They were also influenced by various great philosophical thinkers of the past and were familiar with the works of Plato, Aristotle, Cicero, Sir Edward Coke, Francis Bacon, Richard Hooker, Thomas Hobbes, John Locke, Baron Charles de Montesquie, Algernon Sidney, David Hume, Adam Smith and Sir William Blackstone, (Skousen 61), and this list is certainly not inclusive.
One of the many influential persons, Blackstone, was an English legal scholar who lived contemporaneously with the founders. He lectured at Oxford and his works were well known before being published in Philadelphia in 1771. "Blackstone in his famous Commentaries on the Laws of England, for example, included the right to arms as one of the five 'absolute rights' of Englishmen." (Gottlieb Gun Rights 72, 73)
When Thomas Jefferson wrote the Declaration of Independence he referred to "unalienable rights," which includes life and liberty. These rights are also referred to as natural rights, a belief that God or nature gives to mankind rights which cannot be legitimately taken away. Natural rights philosophy provides the basis for the foundation of American government. One of the earliest recorded Natural Rights' Philosophers, Marcus Tullius Cicero (106-43 B.C.), was admired by John Adams as one of the greatest statesmen and philosophers of the ages (Carsen 84). Cicero, a Roman, recognized natural law in this way:
(G)entlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. (Gardiner 66)
John Adams believed that "All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties..." (Carson 53)
In the same month that he wrote the Declaration of Independence, Thomas Jefferson wrote a model state constitution for Virginia which guaranteed that "no free man shall be debarred the use of arms...." (Gottlieb Gun Control 126)
The Founding Fathers had first hand experience from the quartering of British troops in America of what it was like to be occupied by a standing army. And furthermore, they saw the importance of a prepared citizenry to meet the challenge of an overbearing government or an invading force. Without this armed citizenry, victory in the Revolutionary War would not have been possible.
Richard Gardner, a Director of the National Rifle Association, points out that "(B)y the time of the American Revolution, English law had developed a tradition of keeping and bearing arms which stretched back almost a millennium, ...And it was within this tradition of the individual's right to have and use arms for his own defense, as well as to enable him to contribute to the defense of the nation, that the spark which ignited the American Revolution was struck when the British, by attempting to seize stores of powder and shot in Concord and seeking to disarm the inhabitants of Boston, sought to deny the Massachusetts colonists the ability to protect their rights." (73)
When the victory of the American Revolution was won, a new challenge lay ahead for the Founders to establish a useful government for this new nation. Naturally, the Founders called upon their extensive knowledge of history and philosophy as well as spiritual conviction, to frame a government for America which would, above all, preserve individual liberty and rule by consent of the people.
Among other freedoms not to be infringed by the government (religion, speech and press), our forefathers were resolute in their belief that arms are a legitimate, valued and necessary part of a free society. The father of Robert E. Lee, Richard Henry Lee, wrote a commentary on the Constitution entitled, "Letters From The Federalist Farmer," in which he stated:...(T)o 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." (Gottlieb Gun Control 126)
The men who established this nation were in no way ashamed of their admiration for arms. Thomas Jefferson received a handgun when he was ten years old and he believed that every boy should have the same opportunity. Here is an excerpt from a letter to one of his nephews.
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the Body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks." (Gottlieb Gun Control 125)
Both sides in the debate over the ratification of the Constitution argued for the right of the individual citizen to own arms. Sam and John Adams, cousins, who were on opposite sides of the ratification debate, agreed on one thing - the individual right to keep and bear arms. During the Massachusetts convention, Sam Adams opposed ratification unless accompanied by a provision, "that the said Constitution be never construed...to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." (Gottlieb Gun Control 126) His cousin and future president, John Adams, wrote "arms in the hands of citizens may be used at individual discretion for the defense of the nation, the overthrow of tyranny or private self-defense." (Gottlieb Gun Control 126)
In fact, the Anit-Federalists, such as George Mason and Patrick Henry, opposed ratification because there was no Bill of Rights. George Mason, who participated in the writing of the Constitution, left Philadelphia early and refused to sign the document because it did not include a specific bill of rights. "Reminding the Virginia delegates that the Revolutionary War had been sparked by the British attempt to confiscate the patriots' arms at Lexington and Concord, Mason characterized the British strategy as an attempt 'to disarm the people; that it was the best and most effectual way to enslave them.' " (Gottlieb Gun Control 126).
On the other hand, Alexander Hamilton, in The Federalist 28 & 29 argued that a bill of rights was not necessary because the people were already armed and as such the right could not be taken away. "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...(#28 136)...(I)f 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,...who stand ready to defend their rights...." (#29 140-141)
Madison also opposed the Bill of Rights (Federalist 46), but he succumbed to the pressure of the Anti- Federalists (who were pushing for a new constitutional convention) in order to preserve the work already accomplished on the Constitution. Madison promised to propose amendments to add a Bill of Rights if the Constitution was ratified. As we know, the Constitution was ratified and James Madison kept his promise. The states submitted 186 amendments and Madison edited them down to 19. Here is the language of the subject amendment as Madison originally proposed it to the House of Representatives in August 1789:
A well regulated militia, composed of the body of the people, being the best security of free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms. (Halbrook 77) The debate afterwards altered the wording slightly to remove the reference to religious persons. In addition, Halbrook further explains, that because of their common understanding of the usage of the word "militia," the phrase, "composed of the body of the people," was deleted for the sake of brevity. (79, 80)
When the First Congress passed the Bill of Rights it was understood to represent specific limitations on the power of the federal government over the people.
Today some who oppose the interpretation that the Second Amendment gives to all citizens the right to keep and bear arms contend that the right spoken of herein refers to a "collective right of the state." But this view overlooks the verbiage "the right of the people" which is used in the first, second, and fourth amendments. Besides, if we were to apply the collective theory to other amendments which recognize natural rights, or individual rights (ie religion and speech) then the state or states would also hold authority over these too! A thought which would outrage and shock our society. Furthermore, the location alone of the Second Amendment in the Bill of Rights, between the rights of religion, free speech, assembly, petition of government and the right of the people from unreasonable searches and seizures, implies that the theory of a collective right of the state is wrong.
In fact Alan Gottlieb, who is President of the Second Amendment Foundation, claims that every one of the Founders who discussed arms emphatically endorsed their possession as a fundamental individual right. (Gun Control 123)
Here is an example of what George Washington thought:
Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence...From the hour the Pilgrims landed, to the present day, events, occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and the pistol are equally indispensable...The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good.... (Cooper 22)
Consequently, since the Constitution was ratified as the supreme law of the land (Article VI, the national supremacy clause), and further, as the Bill of Rights was thereafter placed as limitations on federal power, and finally, as all state constitutions are not allowed to contradict the Constitution (Article VI plus the 14th Amendment), Americans may correctly conclude that the Constitution recognizes an unalienable right for individual, law-abiding citizens to keep and bear arms.
THE MIS-UNDERSTOOD "MILITIA"
Another current day argument against the rightful individual possession of arms is the definition of the word "militia." Today we think of militia as the National Guard or some other government regulated group of professionally trained soldiers, but this was not the meaning of the word two hundred years ago.
In the past, the Militia Act of 1792 defined the militia as including almost every free adult male in the country. These men were required to possess arms and a supply of ammunition. Therefore, the traditional usage of this word in the time of writing the Bill of Rights referred to the entire male population. (Skousen 699)
Moreover, when the farmers, merchants, and blacksmiths of the late 1700's fought the war for American Independence, they were our militia. We have historically referred to them as the Minutemen. Even the Random House Dictionary defines Minuteman as: "one of a group of American militiamen during the Revolutionary period who held themselves in readiness for immediate military service." (Stein 852)
Indeed, the Minuteman was a part time soldier and part time ordinary citizen. He was only called into action when circumstances demanded he leave his home and family for a higher duty to his country. These were men who came to the aid of our country, often without pay, and endured years of hardship during the War for American Independence. Since Americans feared a standing army as a threat to freedom, they had not organized professional military training prior to the Revolution, and in fact, ten years before the "shot heard round the world," they would probably never guess there would be anyone other than Indians to fight. For instance, Ben Franklin said of the English: "They will not find a rebellion. (But) they may indeed make one." (Tuchman 164). Accordingly, the American people had not made preparations for a standing army prior to the War for Independence and were therefore relying on the militia, or the whole people for their defense.
Subsequently, during the Virginia Assembly debates over ratification of the Constitution, George Mason asked a question and then gave the answer: " 'I ask sir, what is the militia? It is the whole people, except for a few public officials.' With these words, George Mason made explicit his deep-set belief that the individual armed citizen was the key to protection against government excesses and in defense of freedom." (LaPierre 8)
Even though the militia that won the Revolutionary War was not professionally trained, they were well practiced. With this object in mind, where the Second Amendment refers to "well regulated" the historical interpretation is that the men were well practiced and disciplined in the use of their equipment.
George Washington urged the first Congress to pass an act enrolling the entire adult male citizenry in a general militia. The father of our country further urged that 'A free people ought not only to be armed, but disciplined.' (Lapierre 8)
Similarly, James Madison in The Federalist 46 refers to the possible threat of a standing army in America if the national government ever forced an evil upon the population facing an opposing militia of " 'near half a million citizens with arms in their hands.' In 1790, since the population of the United States was about 800,000, Madison wasn't referring to states reserves. By militia, Madison obviously meant every able-bodied man capable of bearing arms." (LaPierre 8)
In the eighteenth century,...the "militia" included all citizens who qualified for military service (i.e. most adult males). This definition continues to be included in the United States Code today. There is thus no apparent reason for supposing that the term "militia" in the Constitution refers solely or even primarily to organized military units. (Lund 88)
Alshil Amar asserts in his Yale Law Journal article, "The Bill of Rights As a Constitution," that "when the Constitution means "states" it says so... The ultimate right to keep and bear arms belongs to "the people," not the "states." ...Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but when the Second Amendment was written "the militia" referred to all Citizens capable of bearing arms. (Thus) "the militia" is identical to "the people." (LaPierre 13)
To sum up, the original intent of the authors in the Second Amendment recognized the freedom of the American people to keep and bear arms for their personal defense and ultimately to perpetuate a free state. Thus, this provision was not limited to an organized state militia, rather it helped to provide the militia with qualified candidates.
Miller v. U.Ct. 1939 (59 S.Ct. 816)
In 1939 a case of went before the United States Supreme Court in which the Court had an opportunity to uphold the lower court's decision and declare the National Firearms Act of 1934 unconstitutional by correctly interpreting the original intent of the Second Amendment. The case concerned Jack Miller and Frank Layton who were held responsible for violating the National Firearms Act of 1934 by transporting a certain shot gun between Oklahoma and Arkansas. The shotgun had a barrel of less than eighteen inches, which was a technical violation of the National Firearms Act. The lower court had ruled for the defendant, but subsequently, the case was appealed to the Supreme Court by the government.
It is important to note that Miller filed no brief - and made no argument - before the Supreme Court. Only the prosecution presented a case. (Gottlieb Gun Rights 74)
The Supreme Court ruled against the defendant, Miller, stating that the shotgun was not proven to be a weapon that would ordinarily be used for military equipment and therefore could not contribute to the common defense. There are two things wrong with this ruling. First, any weapon which has the capability of self defense can be used as military, or militia equipment. It merely has to meet the test of destruction. Secondly, when the First Senate was debating the Second Amendment they rejected a proposal to insert the phrase "for the common defense" after the words "bear arms," thereby emphasizing that the purpose of the second amendment was not primarily to provide for the common defense, but to protect the individual's right to keep and bear arms for his own defense...." (Gardiner 79)
The Courts decision goes on later to read:
The Constitution as originally adopted granted to the Congress power--'To provide for calling forth the Militia...With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia-- civilians primarily...The term Militia...comprised all males physically capable of acting in concert for the common defense. (4)
The Court's decision refers back to Article 1 Section 8 of the Constitution which enumerates federal powers, such as providing for the common defense; however, as part of the Bill of Rights, the Second Amendment was a limitation on federal power over the individual citizen passed after the adoption of the Constitution. Thus, the opinion of the Supreme Court overlooked the purpose of the Second Amendment, not to infringe or violate individual liberty, and by application the unconstitutionality of the National Firearms Act of 1934.
GUN CONTROL - FALSE SOLUTION TO CRIME
The National Firearms Act of 1934 was the first legislation which violated the Second Amendment by totally discounting the Founder's original intent in its provision. It is interesting to note that this legislation went unopposed by the National Rifle Association. Since that time, our nation has developed the habit of substituting gun control laws for effective punishment of crime. We have abandoned holding people accountable for what they use their free will and choose to do and have substituted the collective idea of blaming society for whatever mistakes a person makes. In effect, our nation's tendencies to go easy on the criminal class has increased the profit to be made by disobeying society's laws. As a result, where there is no fear of punishment, there is no restraint. Additionally, if there is no punishment, there is no motivation to reform, no self examination.
Currently, we have one homicide every 42 seconds, one burglary every 11 seconds, one car theft every 20 seconds, one robbery every 40 seconds, one rape every 5 minutes...At present the actual punishment is 6 to 7 days per burglary, roughly 2 years per murder, 6 months per rape, 2 months per robbery; aggravated assault costs 8 to 9 days; car theft 2 to 3 days....Most people are not aware of how small the actual chance of punishment is; but professional criminals are. It is what makes the career attractive. (Van Den Haag 30-32)
In his article, "The False Promise of Gun Control," Daniel Polsby informs his readers that since 1930 there has never been more than 200 executions per year. In 1993 we had only 32 executions for the roughly 34,000 homicides committed. (Van Den Hagg 32) Clearly, there are no deterrence factors in these statistics. The seventeenth century Englishman, John Locke, had this to say about laws attempting to control weapons in his day: ..."the law could not restore life to my dead carcass." (Gardiner 67)
If crime pays, why should the criminal change his ways? Society has developed all sorts of incentives to keep the criminal class right where it is and to encourage it even further. We educate the criminals in prison, provide unnecessary luxuries, even pay for their frivolous law suits. We offer them rehabilitation programs as a bribe to turn from their wicked ways.
'The remedy sought for crime must turn from punishment aimed at revenge to socialization based on reconciliation." (Stephens 28) As crime has habitually risen and has become a life altering factor for most Americans, the last sixty years have proven this theory valueless as a solution to crime.
We even add to the criminal's ease in committing the crime by attempting to remove guns from the hands of law abiding citizens. This last offense is worse than the others, for it deprives the very people who should be protected by the judicial system.
Senator John Chaffe (R. Rhode Island) wrote an article for the Public Welfare in which he states that "Handguns are responsible for 75 percent of all firearms murders..." (19) On the contrary, an inanimate object has no will and no power on its own to kill which shows the wisdom of this statement is totally lacking. Now is the time to awaken the liberal ideologues to the reality that only people are capable of murder.
If those who have no understanding of the total depravity of man, could have their wish, and if all guns would suddenly vanish overnight they would be in for a shock. Because people would still find a way to kill other people. What would they want to ban next, hammers, ice picks, blondes?
Here's one novel idea from James Jacobs, law professor at New York University on how to decrease crime. "If the police showed leadership in disarming themselves, more private citizens might view firearms as unnecessary in their own lives...." (43)
Another Founding Father, Thomas Paine, believed it would be better for 'all the world to lay arms aside...and settle matters by negotiation...but unless the whole will, the matter ends, and I take up my musket and thank Heaven He has put it in my power.' From a 1775 article in Pennsylvania Magazine." (LaPierre 15)
Therefore, it is futile to think that depriving the law abiding citizen of the right to keep and bear arms will reduce crime. For when that happens, criminals know they have less to fear from potential victims. And if criminals fail to obey the most righteous laws, not to steal, not to murder, will they not also fail to obey the most trivial?
The answer to crime is the same now as it has always been; proper punishment, either imprisonment or execution, not unconstitutional gun control laws. Robert Dowlut states in an article for the University of Dayton Law Review: "Crime 'must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege,' (as determined in Wilson v. State, 1878)." (121)
"(T)here are perhaps 5,000 prisoners a year who could plausibly be executed in the United States; say 100,000 executions in the next twenty years. It is hard to think that the death penalty, imposed on this scale, would not noticeably change the behavior of potential criminals." (Polsby 68)
The writers of the Second Amendment recognized that society will always have a criminal class to contend with, and the Second Amendment provides a partial means to do so, not only keeping, but bearing arms too. If all the law abiding were allowed their right of bearing arms, and it was commonplace in society, our crime problem would likely be insignificant. For what criminal would attempt a bank robbery if all the bankers and other customers were toting guns?
Finally, of primary importance, the writers of the Second Amendment recognized that a free society may have to deal effectively with the worse type of scoundrel, the sovereign authority gone mad, turned tyrant. For we have seen in our recent history that it is possible for the government to turn against the people, as in Waco, Texas. The Founders recognized this too: " 'As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces...might pervert their power to the injury of their fellow citizens, the people are confirmed in their right to keep and bear their private arms.' Tench Coxe "Remarks...on Constitution" Philadelphia Federal Gazette, June 23, 1789" (Gottlieb Fact Book 82)
As the Founding Fathers knew well, a government that does not trust its honest, law-abiding, taxpaying citizens with the means of self-defense is not itself worthy of trust. Laws disarming honest citizens proclaim that the government is the master, not the servant of the people...
The Bill of Rights does not grant rights to the people, such that its repeal would legitimately confer upon government the powers otherwise proscribed. The Bill of Rights is the list of the fundamental, inalienable rights, endowed in man(kind) by his Creator, that define what it means to be a free and independent people, the rights which must exist to ensure that government governs only with the consent of the people." (Snyder 54)
Even if the Second Amendment were to be legislatively overturned, the unalienable right would not be removed. Anyone who believes in the right to life cannot logically be opposed to the right to defend ones own life. Any attempt to amend the right out of existence, either by overturning the Second Amendment or by legislating it away piece by piece, is the warning signal to the citizen militia, the reminder of our duty to alter or abolish a government which makes such an attempt. This is not only our right but our duty in securing our free state. And it is this protection, protection from tyrannical government, which remains the most compelling reason why our nation's law abiding citizens should exercise the right to keep and bear arms.
A well practiced militia (composed of citizens), is necessary for the perpetuation of a free state, therefore, the right of the people to keep AND bear arms shall not be violated by government.
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