20 April 2007

More Second Amendment

I found this in my research. It is particularly appropriate.

So, since I am feeling lazy today.

by Steve Gustafson
Please distribute this text freely

Just like science, the law also knows its paradoxers and eccentrics. What a good society is, or what the law ought to be, are questions aboutwhich reasonable people can always differ, as no ultimate evidence canbe brought to bear on either of them. What the law now -is-, though, isa question that can be decided by reference to authoritative sources open to all who wish to consult them.

As such, it is possible to say that the law knows cranks andcrackpots, people who insist on exploded theories long after they havebeen decisively falsified. A person who claimed that individual stateshad the right to secede from the United States, or nullify legitimatelypassed Federal legislation, would certainly deserve the label of"crank." Whatever sophisms he could put forth in favour of thosepositions have been decisively rejected by both law and history; thoughthey may once have been viable positions, they are no longer.

Other legal cranks claim that various aspects of United Statescurrency, dollars unredeemable for gold, or the Federal Reserve Banks,or other financial institutions, are unconstitutional. Despite the factthat proponents of this nonsense are inveterate litigators and some havefiled literally dozens of lawsuits to establish these claims, they havebeen universally rejected by the courts. [See, e.g., HANSON v. GOODWIN(1977) 432 F. Supp 853; PETH v. BREITZMANN (1985) 611 F. Supp 50]

Some of the people who make these claims have tawdry and venal goals,trying to escape paying their taxes or mortgages, or other obvious sortsof self-interest. On the other hand, these claims are oftenorchestrated by dangerous and evil anti-Semitic cults, aligned withneo-Nazism, holocaust revisionism, and the more homicidal forms ofquackery. These groups proselytize for these false beliefs, hoping byan appeal to self-interest to suck in people for their neo-Nazimovements. When these claims meet universal rejection, this is held tobe evidence of the Jewish "conspiracy" at work.


Then there are those who claim that the 2nd Amendment to the U. S.Constitution gives them a right to own handguns or other firearms, andprevents regulation of gun ownership, licencing, waiting periods, andother proposals for gun control. Like the gold standard advocates,their claims make an intuitive appeal to the way things allegedly werein the distant past. The minutemen and Indian fighters of old needed tohave guns at their side to repel attacks, right? And it was just suchmen who whupped the redcoats, right? So no matter how times havechanged, the Founding Fathers enshrined in the Constitution a right toguns equal to that needed in those days.

Whatever the merits of arguments for or against gun control, claimsof a Second Amendment individual right to own a handgun or any otherparticular firearm are simply false. Those claims have typically metwith universal rejection by courts that have considered them. In short,those who claim under the Second Amendment a Federal constitutionalright to own firearms are as much cranks as the people who claim aconstitutional right to a gold standard.

The Courts have generally held that the 2nd Amendment's purpose wasto guarantee the integrity of militias organized by the states, not toconfer an individual right to firearms. Moreover, any rights created bythe 2nd Amendment have not been applied to the States through theFourteenth Amendment, the true source of the enforceability of portionsof the Bill of Rights against the States.

The Second Amendment to the U. S. Constitution was ratified by theStates on Dec. 15, 1791. It provides that "A well regulated Militia,being necessary to the security of a free State, the right of the peopleto keep and bear Arms, shall not be infringed."

The militia was or is a group of citizens volunteering or legallycompelled to turn out for active military service upon order of theseveral States. For purposes of federal law, it is defined as all malesbetween the ages of 17 and 45 who are or intend to become citizens. [10U.S.C. 31]

The Congress shall have Power. . .

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the

Militia according to the Discipline provided by Congress. . .

[U. S. Const. art. 1, sec. 8, cl. 15-16] The President is Commander inChief of all the state militias when they are called into service of theUnited States. [U. S. Const. art. 2 sec. 2, cl. 1) When the Presidentis not exercising this authority, it is usually held by the governors ofthe several states or territories. (Cf., Northwest Ordinance of 1787,ss. 6; Indiana Const. art. 5, sec. 12)

From the foregoing, it is apparent that the Federal Government hasbroad authority to prescribe rules and regulations for any militia,active or inactive. Believers in a 2nd Amendment individual right tofirearms point only to the Amendment, and claim that everyone isautomatically deemed to be in the militia. At minimum, these argumentsare unavailable to women, or to senior citizens.

More importantly, they duplicitously ignore Congressional authorityover any alleged militia conferred by article 3. Reading this inconnection with the 2nd Amendment, it should be clear that membership inthe militia confers no individual rights. Quite the opposite, it-subjects- you to Congressional authority over what sort of arms, ifany, you are entitled to bear. You are subject to whatever disciplineCongress chooses to provide for the militia. You have no right to aweapon that Congress doesn't want you to have.

As such, any legislation made by Congress that restricts oreliminates the availability of a given weapon is authorized, evenagainst those who claim the status of militiamen, given the power ofCongress to discipline the militia. Indeed, Congress could under thisgrant of authority decide to completely disarm the militia, or providethat the only weapons they were allowed are slings or spears. You getno Constitutional rights from a claim of militia status; you becomesubject to such military discipline as Congress and the States choose toenforce against you.

Indeed, in light of these broad grants of military authority that youare potentially subject to, it strikes me as rather reassuring to knowthat any 2nd Amendment "rights" do not constrain the States through the14th amendment.

It is now well settled that some, but not all, of the provisions ofthe Bill of Rights also curb the authority of the States by means of the14th Amendment's due process clause. Not all of them are: the 5thAmendment requirement of an indictment by grand jury for crimes does notapply to the States, for example.

And, any right to bear arms created by the 2nd Amendment does notapply to the States, either. See, e.g., KELLOGG v. CITY OF GARY (1990)Ind., 562 N.E.2d 685, 692. As such, the states remain free to restrictor ban any firearms in the exercise of their general powers to legislatefor the health, safety, and welfare of their citizens. The SecondAmendment poses no obstacles to such legislation. See, e.g., NEWHAMPSHIRE v SANNE (1976) 364 A.2d 630.

Moreover, for more than a hundred years the United States SupremeCourt has held that the Second Amendment does not grant any individualrights; but rather, it is "a limitation only upon the power of Congressand the National Government. . ." PRESSER v. ILLINOIS (1886) 116 U.S.252, 265. There is no Federally guaranteed right to bear arms for anylawful purpose that is granted by the U. S. Constitution. UNITED STATESv. CRUIKSHANK (1876) 92 U.S. 542.

Likewise, in UNITED STATES v. MILLER (1939) 307 U.S. 174, the UnitedStates Supreme Court held that concerns over safety and concealmentallowed Congress to require registration of sawed-off shotgunstransported across state lines, despite claims that the Federal law inquestion was an attempt to usurp the States' police power, or that the2nd Amendment gave individuals a right to such a weapon.

In the absence of any evidence tending to show that possession or use of [a sawed-off shotgun]. . . at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

MILLER, 307 U.S. at 178. It is true that the United States Supreme Court has not oftenconsidered the scope of any claims of Second Amendment rights. Some haveattempted to use this silence as implying that some right might exist.In fact, the Supreme Court has broad discretion to decide what cases areworth its time to hear. It is likelier to take up an issue when it seeswidely different standards being applied by lower courts.

On the Second Amendment, though, the Supreme Court is confronted withno such differences of legal opinion. Instead, a survey of currentdecisions shows instead that there is an Amen chorus of agreement thatthe Federal constitution poses no obstacles to gun control.

The courts instead say that the 2nd Amendment guarantees a collectiveright of political organizations to form militias, not an individualright to a firearm. UNITED STATES v. WARIN (1976 6th Cir.) 530 F.2d103; UNITED STATES v. JOHNSON (1974 4th Cir.), 497 F.2d 548. Itprotects state militias, not personal firearms. UNITED STATES v. NELSEN(1988 8th Cir.) 859 F.2d 1318; CASES v. UNITED STATES (1942 1st Cir.)131 F.2d 916, cert. den. Its only purpose is to prevent Congress frominterfering with State militias, and has no bearing on regulation offirearms for public safety or the general welfare. UNITED STATES v.HALE (1992 8th Cir.) 978 F.2d 1016.

The Second Amendment poses no obstacle to state or local laws thatsubstantially burden or completely ban handguns for safety and welfarereasons. QUILICI v. VILLAGE OF MORTON GROVE (1982 7th Cir.) 695 F.2d261, cert. den.; SKLAR v. BYRNE (1984 7th Cir.) 727 F.2d 633. Technicalmembership in an inactive state militia does not confer a right to ownan unregistered submachine gun. UNITED STATES v. OAKES (10th Cir.) 564F.2d 384. To claim a right under the Second Amendment, you must be inactive duty in a militia organized by a state, rather than a merelyprivate organization or a person theoretically subject to militiaservice. VIETNAMESE FISHERMAN'S ASSOCIATION v. KNIGHTS OF THE KU KLUXKLAN (1982 S. D. Tex.) 543 F.Supp 198.

Read 'em and weep, NRA members. You cannot even glimpse at thismaterial without forming the conclusion that anybody who has told youthat you have a Second Amendment right, enforceable in court, topurchase and keep a firearm free from gun control legislation --- hasbeen telling you a lie. I'm not talking about the rhetoric fromAmerican Revolution veterans. I'm talking about what the courts say anddo in the here and now. It just ain't so.

To sum up:

The Second Amendment offers no protection against Congressionalregulation or banning of weapons that still allow state militias inactive duty to be armed. Indeed, Congress has the right to prescribewhat weapons, if any, such militias will be authorized to bear.

The Second Amendment offers no protection against the regulation orbanning of weapons by the States. The Second Amendment does notrestrict the police powers of the States in any way, because it does notapply to the States. The States may decide that some or all firearmsare threats to health and public safety, and restrict or ban them forthose reasons, notwithstanding the Second Amendment.

Former Chief Justice Warren Burger, hardly a bleeding heart liberal,has called the belief that the Second Amendment guarantees an individualright to firearms one of the biggest frauds perpetrated on the Americanpublic by a special interest group. Whatever your opinion on thedesirability of guns or an armed citizenry, given the current status oflegal precedents, his assessment of the situation is correct.


In the course of the endless debate on whether the 2nd Amendmentcreates a Federal constitutional right to own handguns or otherfirearms, some have claimed that the Federalist Papers contain supportfor these claims. In those documents, it is said, the Founding Fathersexpressed their support for an individual right to own firearms. What Iknow of history made me skeptical of those claims, so I looked into it.

These arguments only work on people who are unfamiliar with both theFederalist Papers and the history surrounding them. The claimsgenerally fall into two categories:

First, that the Federalist Papers ought to be interpreted as an expression of the intent of the Framers to create an individual right to gun ownership by the 2nd Amendment; or

Second, that the Papers contain expressions of confidence by the Framers that guns in the hands of private individuals are a bulwark against government tyranny.

The first claim is easily refuted. The Federalist Papers are a poorsource for any information about the intentions of the authors of theBill of Rights. They are suspect on these grounds because the authorswere not advocating the passage of the Bill of Rights; it was not partof the proposal they were defending. Indeed, they argued at length inthe Federalist Papers that a Bill of Rights was unnecessary. In -TheFederalist No. 84-, Hamilton says:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.

Are these authors then reliable guides for the interpretation of anypart of the Bill of Rights, including the 2nd amendment? It would seemnot so.

The second claim is that the Federalist Papers contain expressionsby the Constitution's original authors, that guns in the hands ofprivate individuals are an important bulwark against tyranny. If youequate "militia" with "anybody" like the NRA would have us do, there aresome passages that could be read as supporting this theory. On theother hand, to read the Federalist Papers is to realize how wrong theNRA is about the nature of a militia.

What people were in fact debating in the days of the FederalistPapers was: are standing armies desirable? Will a standing army beturned into an instrument of tyranny against the people? Will astanding army be turned by the Federal Government proposed by theConstitution to purposes of foreign military adventurism?

Madison, replying to these criticisms, wrote words that might beread as supporting the NRA position:

The only refuge left for those who prophecy the downfall of the State Governments, is the visionary supposition that the Foederal Government may previously accumulate a military force for the projects of ambition. . .

[After estimating the number of professional soldiers he thought the country could support at the time at 30,000 maximum, Madison continued---]

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, 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.

(The Federalist, no. 46)

It should first be noticed that the militia imagined by Madison bearslittle resemblance to the ghostly force imagined by the NRA. Themilitia here has officers. It is commanded by state governments. It isnot a mere assembly of self-proclaimed irregulars.

It should also be noted that, whatever confidence Madison had inmilitias, these words give no succour to those who would claim that heintended an -individual- right to own any firearm she pleased. Instead,the liberties defended by the militias here don't belong to anyindividuals, but to the several States.

If we are delving into history as far back as the Federalist Papersto interpret the Constitution, it makes little sense to ignore one majorevent that calls Madison's line of argument above into question: theCivil War. After the Civil War, it seems idle to suggest that statemilitias have a scheme in the Constitutional system to check the Federalgovernment by making war against it. Whatever the 2nd Amendment mightgive to the States, later precedent seems to have taken it away.

Finally, it should be conceded that the critics to whom Madison wasreplying were themselves closer to being right than he is. For betteror for worse, we now have a standing professional army. TheConstitution's stricture that a standing army can only be funded for twoyears at a time has been an inadequate check to the growth of theprofessional military establishment. The standing army's advantages inarmament are great enough that it seems hard to imagine that any militiafielded by an aggrieved state government could overcome it, despiteMadison's confidence.

Madison's critics were also right, in that the Federal government'sstanding army has indeed become an instrument of both harshauthoritarian rule, and foreign military adventurism, as they feared.Gun control is not as great a threat to our freedoms, as compared withthe threat of being hauled into boot camp against your will into themilitary service of the Federal government. If Madison and Hamilton ortheir critics had foreseen that, the Constitution never would havepassed.

The Federal government's power to dragoon people into its armies haswithin recent memories been used to support military adventures abroad.The national security establishment has been a major source ofrestrictions on Constitutionally guaranteed freedoms, and thepersecution of people for their political opinions. These things werethe very dangers the Anti-Federalists warned us of.

Among those who noisily insist on their alleged right to guns, itseems to me that "national security," military patriotism, and the Flagoften achieve the rank of sacred totems. These beliefs suggest thatMadison's arguments and concerns are an imperfect fit to contemporarypolitical debates. Love of guns for many is not inconsistent withunquestioning support of an authoritarian, centralized military.

Indeed, given what Madison was in fact saying, it would bemealy-mouthed hypocrisy for somebody to cite the Federalist Papers insupport of a right to own guns, and to turn around and label our President Clinton a "draft-dodger," as if that's honourable.

In conclusion:

The Federalist Papers shed no light on what the 2nd Amendment to the U. S. Constitution might mean.

The Federalist Papers do not claim that an armed citizenry in and of itself is an important restraint on tyranny.

The Federalist Papers do support the claim that organized State militias may be a check on the military adventurism or usurpations of the Federal government. After the Civil War, this claim is no longer tenable; given changes in the hardware required for war, it is probably utopian.


"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 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

This is typical of one of those out of context quotes that are oftenrepeated in gun lobby propaganda. Patrick Henry was not arguing for aright of anybody to own any weapon for any private purpose here.

Observe the pronoun without a reference in the first line. The editorwho would puff this as a pro-gun-anarchy quote chose not to leave in areference to who the "we" are that Patrick refers to here. In context,"we" are not people in general, but the Virginia House of Burgesses.

The issue under discussion was whether the Constitution proposed bythe Federalists should be ratified by Virginia. The specific issueunder discussion was the broadened military powers granted the Federalgovernment by the Constitution. The Constitution allowed the Federalgovernment to raise armies. The Articles of Confederation made raisingarmies a responsibility of the States, who typically had more or lesstrained militias; the Federal government had limited powers to mobilizethem.

Henry was specifically against the section of the Constitution thatgave Congress the power to organize, arm, and discipline state militias.(Article 1, section 8, clause 16) This is what he was talking aboutwhen he mentioned "having our arms under the management of Congress."Not gun control or licensing as a safety or anti-crime measure.

Indeed, if you imagine that you have gun rights as a member of anorganized or irregular "militia," the Constitution gives Congress powerto decide what arms you can bear and the terms of your discipline.Licensing for safety would be one reasonable way for Congress toexercise its explicitly granted power.

For what it's worth, Patrick Henry was on the losing side of thisargument. As an anti-Federalist, he opposed the Constitution and thestronger government it was intended to create. Virginia did end upratifying the Federal constitution on June 26, 1788, although the votein Virginia was close. Even if you read it in support of private gunsrather than state armies, Henry's statements carry little weight todetermine the mind of the authors of the Constitution itself.

You can believe what you wish about the worthwhileness of guns or theundesirability of any or all measures for gun control. But I find itvexing to constantly see out-of-context quotes, distorted history, andmisstatements of the law being dragged into this endless argument.

"THE Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of con- science; or to prevent the people of the United States who are peaceable citizens from keeping their own arms".
(Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87.)

Another quote from an anti-Federalist; in Adams's case he originallyopposed ratification of the Constitution as well. His statements hereare certainly not conclusive; and, again, he was talking about thekeeping of arms for military purposes, not private ones.

I will admit that the Founding Fathers hoped or imagined that astanding army would not be necessary. They believed that it would bepolitically dangerous, and a temptation to foreign interventionism.They imagined that America would be adequately defended by a "militia"constructed on lines similar to the Swiss system. While they thoughtthat everybody would have a rifle to bring and participate in thissystem, they also thought that everyone would be required to drill andacquire at least some minimal military competence.

Over time, it didn't work out that way. Universal militia service collapsed around the 1820's; people just weren't obeying the laws thatrequired them to appear and drill, &c. The next step was to organizelocal regiments of volunteers that formed the core of what was to becomethe National Guard. This was the main body of American arms up untilthe Spanish-American War; although in heavy fighting such as the Civil War this model proved inadequate as well. Still, up until World War IIwe kept the faith of the Founding Fathers that Federal armies should be kept small in times of peace, and in strict subordination to the civil power.

Since World War II, we have had a large standing army in permanent establishment; and as such most of the dangers warned against by theFounding Fathers have come to pass. One quote from Samuel Adams thatfor some reason gets passed over by the NRA or the American Legion comesto mind ---

Soldiers are used to obey the absolute commands of their superiors: It is death to them, in the field, to dispute their authority, or the rectitude of their orders; and sometimes they may be shot upon the spont without ceremony. The necessity of things makes it highly proper that they should be under the absolute control of the officer who commands them; who saith unto one come, and he cometh, and to another go, and he goeth. Thus, being inured to that sort of government in the field and in the time of war, they are too apt to retain the same idea, when they happen to be in civil communities and in a time of peace. [Boston Gazette, Dec. 12, 1768]

It is worthwhile to recall these words when confronted with thep oliticking of veterans' organizations, or their pretense to define by their authoritarian model the One True Patriotism.

We now see the military actively politicking, as view their attempts to claim the nation would be endangered were their budget cut or their numbers reduced; consider also their resistance to their Commander inChief's instructions to end institutional hostility to homosexuals.Veterans' organizations pretend to define the One True Patriotism according to their authoritarian model of following orders.

Instead of the volunteer militias to defend hearth and home imagined by the Founding Fathers, we were given the monstrous tyranny of Selective Service. Today's would-be tyrants claim that the One True Patriotism consisted of unquestioning obedience to its orders, and paint resistance to that loathsome bureaucracy as suspect! In fact, the Selective Service press gangs raised troops for exactly the sort of foreign adventures our founding fathers condemned.

At its most grandiose, it hoped to become an instrument of a national labour and industrial policy that sought to coerce us into a socialist military state. During the dark days of conscription, it was anexplicit national policy to use the threat of forced military service asa club to compel people to make career decisions that favoured thegovernment's idea of what was useful to it, rather than their own interests. Remember General Hershey's infamous "channelling" memo of 1965:

In the less patriotic and more selfish individual it engenders a sense of fear, uncertainty, and dissatisfaction which motivates him, nevertheless, in the same direction. He complains of the uncertainty he must endure; he would like to be able to do as he pleases; he would appreciate a certain future with no prospect of military service or civilian contribution, but he complies with the needs of the national health, safety, or interest --- or he is denied deferment. . .

From the individual's viewpoint, he is standing in a room which has been made uncomfortably warm. Several doors are open, but they all lead to various forms of recognized, patriotic service to the Nation. Some accept the alternatives gladly --- some with reluctance. The consequence is approximately the same.

[The Selective Service: Its Concepts, History, and Operation (Govt.Printing Office, Sept. 1967)] Remember those words the next time you hear the "anti-socialist" rhetoric of professional flagwavers. Remember these words the next time you hear President Clinton being condemned as a "draft-dodger." I submit that "draft-dodgers" were the people who were actually keeping the spirit of our Founding Fathers alive, rather than the latter-day Hessians or Prussians who think obedience to orders is praiseworthy.

In any case, when our Founding Fathers spoke of keeping and bearing arms, they meant for military purposes, under the control of governments and for purpose of national defence. To try and twist their remarks into support for private guns for private purposes is to take them seriously out of context.

No comments: