Newsgroups: talk.politics.guns
From: [l v c] at [cbnews.cb.att.com] (Larry Cipriani)
Subject: Re: Gun advocates LONELY without their 2nd Amendment...
Date: Sun, 10 Apr 1994 15:12:05 GMT
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This article appeared in the February 1988 *Guns & Ammo*.
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The Second Amendment -- Our Freedom Guarantee
by Neal Knox
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Despite argument and dissent, our domestic security stems from the
simple statement of rights.
---------------------------------------------
During the recent 200th birthday celebration of the U.S. Constitution,
there was much attention paid to the Bill of Rights, particularly the
First Amendment freedoms of press and speech, but almost nothing said
concerning the Second Amendment right to keep and bear arms. When
mentioned at all, the Second Amendment is usually referred to as a
"dinosaur" or causually dismissed as only applying to the National
Guard.
This is appalling treatment for that section of the Bill of Rights that
is *intended to guarantee all the other freedoms!*
Consider what the Supreme Court Justice Story wrote in 1833: "The right
*of the citizen* to keep and bear arms has justly been considered as
the palladium [guardian] of the liberties of a republic; since it offers
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| "The beauty of this freedom insurance plan is that |
| so long as the right exists, it is never needed." |
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a strong moral check against the usurpation and arbitrary power of
rulers." (Ref. 1)
The Texas Supreme Court put it more bluntly in an 1859 decision: "(T)he
people cannot be effectually be oppressed and enslaved, who is not first
disarmed." (Ref. 2)
This is precisely the point made by students of government from Plato to
Machiavelli to John Locke -- all of whose works were familiar to the
55 learned men who gathered at Philadelphia to draft our Constitution
200 years ago. It would not have occurred to them that the limited
government they created -- with its emphasis upon individual liberties --
might consider banning individual firearms, for *the right to keep and
bear arms was an absolute right* (according to their contemporary, the
preeminent authority on the common law, Sir William Blackstone (Ref.3)).
The Second Amendment has nothing to do with hunting, target shooting,
gun collecting or any other recreational use of firearms. The Second
Amendment does, however, affect your ability to defend yourself, your
family, and your nation. The beauty of this "freedom insurance" plan
is that so long as the right exists, it is never needed.
The weekend that President Nixon fired the Special Prosecutor investigating
his role in Watergate, I mentioned a pending gun bill to a friend.
"How can you think about gun control when Nixon is about to mobilize
the Army and declare himself dictator?" he exploded.
I didn't believe that the President had any such intention, but replied,
"The fact that we still have our guns is what guarntees that he won't."
My friend looked at me in astonishment, then said, "For the first time
I understand why you fight gun control."
The Founding Fathers would have understood; they fought a bloody revolution
when the British tried to take the guns at Concord and the powder at
Williamsburg. Having overthrown one oppressive government, the delegates
to the Constitutional Convention were extremely concerned about not
re-creating chains such as those they had just broken. Yet they knew
that if their hard-won freedom was to be preserved, they had to construct a
stronger national government than the loose confereration of states
that existed.
While framing our Constitution, the Founding Fathers unanimously rejected
a bill of rights -- to dismay of Thomas Jefferson -- for they didn't
think one necessary in a government with limited powers. But the people
refused to accept the new Constitution without amendments spelling out
each *individual citizen's rights.*
We are continuously told that those first ten amendments -- known
collectively as the Bill of Rights -- are fundamental rights of all
U.S. citizens, but for well over 100 years the U.S. Supreme Court
considered the Constitution as a limitation only upon the laws passed
by Congress. Not until this century did the Court begin to decide
that the Fourteenth Amendment caused the Bill of Rights to also prohibit
state laws infringing speech, religion and other freedoms. Nine of the
ten amendments contained within the Bill of Rights are generally
interpeted as rights of the "individual."
The Second Amendment clearly was intended as an individual right,
for it says: "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."
"The people" guaranteed the right to peaceably assemble in the First
Amendment, and "the people" guaranteed freedom from unreasonable searchs
in the Forth Amendment, were unquestionably the same "the people"
guaranteed the right to keep and bear arms in the Second Amendment.
Justice Hugo Black, who in 1960 wrote that the Second Amendment was an
"absolute" prohibition against Congressional infringement (Ref. 4),
repeatedly criticized the Court for picking and choosing which of the
Bill of Rights' amendments were to be protected from state laws.
(Some have confused the phrase "well-regulated militia" with government
regulation; in colonial times "well-regulated" meant well-disiplined
(Ref. 5) or proper-functioning. It referred to both the militia and
the guns they were required to provide; the phrase still has the same
meaning in relation to firearms, for double-barrel guns are "regulated"
to shoot to the same point of impact.)
The Second Amendment didn't merely authorize the states to have militia,
for they were already covered in the main body of the Constitution
(Ref. 6). However, it is true that some Congressmen *wanted* the Second
Amendment to be only a collective right, rather than an individual
right. *They lost.*
During Senate debate on what became the Second Amendment, an amendment
was offered to make it read "the right of the people to keep and bear
arms '*for the common defense.*'" (Ref. 7) It was soundly rejected.
Perhaps that effort to limit the right was proposed because there had
been an armed rebellion in Massachusetts only two years before, or
because there was a concern about armed criminals and highwaymen even
then, but the Second Amendment cannot now be said to apply only to "the
common defense" when the legislative history shows that such an effort
to water it down was specifically proposed and defeated.
The initial version of what became the Second Amendment had added "but
no person religiously scrupulous of bearing arms shall be compelled
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| "Some Congressmen *wanted* the Second Amendment |
| to be only a collective right." |
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to render military service." Congressman Elbridge Gerry of Massachusetts
opposed that phrase, saying "the people in power ... can declare who
are those religiously scrupulous, and prevent them from bearing
arms." (Ref. 8) Congress was clearly discussing an individual right,
for *only individuals can be "religiously scrupulous."*
With such clear evidence as to the intent of the Second Amendment,
why can't the Supreme Court see it? The short answer is: They don't
want to.
According to Justice William O. Douglas' biographer, shortly after his
appointment to the Supreme Court he was told by Chief Justice Hughs,
"You must remember one thing. At the Constitutional level where we work,
ninety percent of any decision is emotional. The rational part of us
supplies the reasons for supporting our own predilections." (Ref. 9)
What makes this startling admission particularly significant is that
Douglas was appointed in early 1939, the same year the only Second
Amendment decision was handed down -- accepting the National
Firearms Act.
There have been only three significant Supreme Court decisions involving
the Second Amendment: *U.S. v. Cruikshank,* 1876, (Ref. 10), *Presser
v. Illinois,* 1886, (Ref. 11) and *U.S. v. Miller,* 1939 (Ref. 12).
Handgun Control Inc. often quotes from *Cruikshank,* which says: "the
bearing of arms for a lawful purpose is not a right granted by the
Constitution." They never quote the next sentence from that decision:
"*Neither is it in any manner dependent upon that instrument for its
existence*."
The Court stated in *Cruikshank* that since the First and Second
Amendments limitied only the Congress, *they did not prohibit the
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| "With such clear evidence as to the intent of the |
| Second Amendment why can't the Supreme court see it?" |
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Ku Klux Klan from conspiring with local officials to prevent newly freed
black slaves from holding political meetings or having guns.* It
boggles the mind to hear so-called "Liberals" proudly cite the
*Cruikshank* decision.
The fact is that denying guns to freed slaves was the start of the
"gun control" movement.
Only 19 years before the *Cruikshank* decision, in the infamous Dred
Scott decision (one of the factors leading to the Civil War), the court
had ruled that a freed slave was not "entitled to the privileges and
immunities of citizens" for that "would give to persons of the negro
race ... full liberty of speech ... to hold public meetings upon political
affairs, and *to keep and carry arms wherever they went*." (Ref. 13)
(our italics)
In 1982 the lower courts upheld the Morton Grove handgun ban, citing
both *Cruikshank* and the 1886 *Presser v. Illinois* decision that the
Second Amendment "is a limitation only upon the power of Congress and
the National Government, and not upon that of the states." The Supreme
Court declined to consider the appeal (Ref. 14), which isn't the same
as upholding the Morton Grove, although it had that effect.
If the Supreme Court were consistent, it would have overturned both
the *Cruikshank* and *Presser* decisions to bring them into accord with
more recent decisions based on the Fourteenth Amendment. The Supreme
Court didn't include the Forth Amendment's protection of "the people"
against unreasonable searches as a protection against state laws until
1961. However, in 1871, only three years after the Forteenth Amendment
was ratified, Rep. John A. Bingham, who drafted it, said "the priviges
and immunities of citizens of a state are chiefly defined in the first
eight amendments to the Constitution .... The eight articles ... never
were limitations upon the power of the States, *until made so by the
forteeth amendment.*" (our italics)
But long before the Forteenth Amendment, the Georgia Supreme Court held
that the right to keep and bear arms was not to be tinkered with by
any level of government: "'The right of the people to bear arms shall
not be infringed.' 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 used by the *militia*, shall
not be *infringed*, curtailed or broken in upon, in the smallest
degree ... Our opinion is that any law, State or Federal, is repugnant
to the Constution, and void, which contravenes this *right*...."
(Ref. 15) (italics in original)
(The Georgia court went on to distinguish between "keeping" and "bearing."
As David Hardy noted in *Origins and Development of the Second Amendment,*
although "keeping" arms was an absolute right under common law,
restricting was permissable on "bearing arms" -- which could not be
bourne for the purpose of terrifying the populace. The right to bear
arms never applied to anything other than self-defense weapons, so in
answer to one of the sillier arguments of the anti-gunners: No, the
Second Amendment doesn't guarantee the right of citizens to own individual
nuclear weapons.)
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| "The fact is that denying guns to freed slaves was |
| the start of the gun control movement." |
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College students are told in supposedly scholarly works like *The
Meaning of The Constitution* that the Second Amendment "merely prevents
the federal government from disarming the members of the National
Guard." (Ref. 16) That's nonsense, for even that book acknowleges that
the intent of the Second Amendment was to "protect the citizen against
the unconstitutional usurpation of power by the federal governent."
The National Guard cannot possibly serve as such a brake upon a tyrannical
federal government, for the Guard is part of the U.S. Army and is always
subject to the orders of the federal government. Example: In 1957,
Arkansas Governor Orville Faubus called out the National Guard to enforce
the state's laws segregating Little Rock High School. President
Eisenhower immediately placed the Arkansas Guard under Federal control
and ordered them to support Army paratroopers sent to Little Rock to
*enforce* court ordered desegregation.
Exactly 30 years later, in August 1987, a Federal Court in Minnesota
made it clear who commands the National Guard by ruling against the
efforts of Minnisota Governor Rudy Perpich to prevent the state's National
Guard from being sent to Central America for training. (Ref. 17) So even
if the Second Amendment applied only to the militia, the National Guard is
-- as the Minnisota court ruled -- only "*part* of the militia." What
you may not realize is that if you are capable of using a gun, *you are
automatically part of today's militia*.
Only four months after the Constitution was ratified, Congress formally
reestablished the two classes of militia that had existed during colonial
times: (a) those that were formally organized into units, and (b) *all
other able-bodied men aged 18 to 45*. (Ref. 18) When the National Guard
was created in 1903, it specifically did not replace the militia, only
added a third category, and both organized and unorganized militia are
still recognized in current law. (Ref. 19) But the total unorganized
militia is even broader than the statute, comprizing, according to the
Supreme Court in *U.S. vs. Miller*,all persons "physically capable of
acting in concert for the common defense."
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| "The Second Amendment must be defended ... to ensure |
| all of our freedoms, and those of those Americans as |
| unborn." |
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In that 1939 case, the only time the Court has ever considered a Federal
gun law, the Supreme Court did what it usually does when faced with a
political hot potato: it avoided ruling directly on whether the National
Firearms Act is a violation of the Bill of Rights. Instead of addressing
the Constitutional rights of a person, which was the issue at stake,
it dealt with the characteristics of a gun.
The court evasively stated: "*In the absence of any evidence* that
possession or use of a 'shotgun having a barrel of less than eighteen
inches in length' at this time has some reasonable relationship to
the preservation or efficiency of a well-regulated militia, we cannot
say the Second Amendment guarantees the right to keep and bear such an
instrument. Certainly *it is not within judicial notice* that this
weapon is any part of the ordinary military equipment or that its use
contribute to the common defense."
The reason there was no evidence, and no judicial notice, was that
*no one appeared before the Court to defend the Second Amendment*!
Only the Justice Department's argument was heard -- and it was headed
by the same Attorney General who had proposed the law in the first
place. (Attorney General Homer Cummings had told a house committee
that because the National Firearms Act was based on the government's
taxing powers, it did no violate the Second Amendment, but *would
if it were an outright ban (Ref. 20) -- as is the recently enacted
machine gun freeze.
Short-barrelled, smoothbored guns always have been used in armies, and
still are. However, even by the narrow standard on which the Court
decided *Miller*, the law's prohibition against full automatic arms
was unquestionably unconstitutional, for they were and are undeniably
a part of "militia" armament -- and the law says we're all part of the
militia.
Although the National Rifle Association had frequently argued that
various proposed gun laws violated the Second Amendment, in 1934 NRA
made a deal to support the National Firearms Act if handguns were
removed the bill (Ref. 21), so they didn't get involved with *Miller*.
In 1982, the Senate Judiciary Subcommittee made an in-depth study of
the Second Amendment and issued a lengthy report stating: "What the
Subcommittee on the Constitution uncovered was clear -- and long-lost
-- proof that the second amendment to our Constitution was intended as
an individual right of the American citizen to keep and bear arms in
a peaceful manner, for protection of himself, his family and his
freedoms." (Ref. 22)
So why are we spending so much time, money, and energy fighting gun
laws in the states and Congress? If we're so certain of the meaning
of the Second Amendment, why don't I, on behalf of the Firearms Coalition,
simply file a case to make the Supreme Court give a proper interpetation
of the Second Amendment? Because no one "makes" the Supreme Court do
anything.
A proper Second Amendment decision -- based upon the intentions of those
who wrote and ratified it -- would strike down most of the Federal gun
laws and many state laws. Realistically, we don't expect that to happen,
for (as indicated by the fight over the confirmation of Judge Bork) the
Supreme Court is just as political as the Congress or the White House.
Therefore, the possibility of significant court-ordered relief from
unconstitutional gun laws, particularly state laws, is slight at best.
However, we may be able to strike down gross excesses like the machine
gun freeze and some of the Treasury regulations that go beyond the
law. Despite what the Constitution says -- and what those who ratified
it intended -- no gun bill in recent history has ever been defeated,
and no gun law has ever been overturned, because it violates the Second
Amendment. But *thousands of gun bills have been defeated, and dozens
of gun laws have been overturned*, because elected officials fear the
wrath of gun owners at the polls.
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| "The Second Amendment 'merely prevents the federal |
| government from disarming the members of the |
| national guard.' That's nonsense ..." |
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*Political action* -- the diligent exercise of our First Amendment right
to petition the Congress -- is the kind of defense of the Second
Amendment that works. That is why we must expand our political clout
and not be timid about using the power that we have.
The Second Amendment *must* be defended, and never compromised, for the
very same reasons the the Founding Fathers wrote and ratified it 200
years ago -- to ensure all of our freedoms, and the freedoms of those
Americans as yet unborn.
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Author's Note: Much of this article is based upon the Morton Grove handgun
ban brief prepared under the direction of the late Jim Featherstone,
a patriot who served as the head of NRA-ILA's Legal Division during my
watch. My appreciation to David I. Caplan, Ph.D., Robert Dowlet, Richard
Gardiner and Stephen Halbrook, Ph.D., for their pioneering works on the
Second Amendment, which were also studied. Special thanks to Dave Hardy,
author of *Origins and Development of the Second Amendment* (Blacksmith
Press, $11.95) and many other books and articles concerning firearms
rights, who reviewed this manuscript and made much-appreciated suggestions.
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REFERENCES
(1) Commentaries on the Constitution of the United States, Section 1890,
pp. 746-747 (1833)
(2) Cockrum vs. State, 24 Tex. 394 (1859)
(3) I Blackstone Commentanes 129, 144
(4) Black, "The Bill of Rights," 35 N.Y.U.L. Rev. 865, 973 (1960)
(5) II Compact Edition, Oxford English Dictionary, 2473 (1971)
(6) Art. I, Sec. 8
(7) 1 Journal of the First Session of the Senate of the United States,
p. 77 (1820)
(8) Annals of Congress, 749-750 (August 17, 1789)
(9) Mason, William O. Douglas: A Justice for All, cited by Robert Dowlet,
"The Right to Arms: does the Constitution or the Predilection of
Judges Reign?" Oklahoma Law Review, Vol. 36 No. 1 (1983)
(10) 92 U.S. 542 (1876)
(11) 116 U.S. 252 (1886)
(12) 307 U.S. 174 (1939)
(13) Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857)
(14) Quilici v. Village of Morton Grove, 695 F. 2nd 261 (7th Circ. 1982)
(15) Nunn V. State, 1 Ga. 243 (1846)
(16) Angela R. Holder, The Meaning of the Constitution, Barron's
Educational Series, 1987, p. 63
(17) Perpich and the State of Minnesota v. Dept. of Defense, et al, 3-87
Civ. 54, August 3, 1987
(18) Militia Act of 1792
(19) U.S. Code, Title 10, Sec. 311
(20) Hearings on the National Firearms Act, H.R. 9066, Committee on Ways
& Means
(21) National Firearms Act Hearings
(22) The Right to Keep and Bear Arms, Report of the Subcommittee on
the Constitution, U.S. Senate Committee on the Judiciary, Chairman
Orrin Hatch, February 1982, p. VIII.
--
Larry Cipriani [lawrence v cipriani] at [att.com] or attmail!lcipriani