Tomorrow we may find out if the Supreme Court of the United States will, or will not, engage in the most outrageous act of judicial activism in the case of DC v. Heller.
The Second Amendment is not a guarantee of an individual right to own firearms, but a guarantee that standing armies will not be established. Every quote taken out of context by the "RKBA" crowd when read in its entirety shows that the issue was a fear of the establishment of a standing army. That is a large military-industrial complex. Think George W. Bush invading Iraq based upon false pretexts and you get the idea of what the founding fathers meant by tyranny.
Instead of preventing a massive military budget, the Second Amendment has been used to prevent any attempt for public safety through the regulation of firearms. Somehow, this fact has been missed by all those writing briefs. Maybe some Supreme Court justice's clerk reads my blog and this issue will be raised, but I think that this has been lost in the rhetoric. It's unfortunate. I hope that the issue of prevention of standing armies will be raised and addressed, but that hope may prove in vain.
The Declaration of Independence doesn't mention seizing private firearms, but it does mention keeping "standing armies in time of peace". Anytime the right of keeping and bearing arms is mentioned it is in the context of standing armies and how tyrants build large military machines. The militia is made effete and replaced by a standing army.
The Second Amendment is not as clear as most people believe. Interpreting it without knowing the context in which it was proposed and ratified may just produce the wrong conclusion. One needs to realize that our founding generation was deathly afraid of standing armies. As British citizens, they surely knew that it was only about a century since Oliver Cromwell had used Britain’s “New Model Army” with its red uniforms to overthrow the king and have himself installed as Lord Protector. They also knew that the kings in Europe, including their beloved George III, maintained power by keeping large standing armies to protect them. Even during our Revolution there were many Americans who feared George Washington’s Continental Army as a force that could impose a new tyranny after ousting the British. Militias of the people, however, could provide for the national and state defense without the dangers of a standing army.
The first statement of what later became the Second Amendment was contained as Article XIII of the Virginia Declaration of Rights. It read,
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.The phrase “That the people have a right to keep and bear arms” was added to this language in 1788 by the Virginia constitutional ratifying convention in its proposed bill of rights. The New York convention broke up the right into three paragraphs:
That the People have a right to keep and bear 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 should 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.
When James Madison submitted his version of the Bill of Rights to the Congress in 1789 the provision was close to its final language,
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.The final version, adopted by the Congress and then sent to the states for ratification, reversed the order of the first two clauses and dropped the conscientious objector provision.
Thomas Jefferson was against a Constitution that did not contain a bill of rights to protect the people not against themselves, but from the federal government:
“I hope, therefore, a bill of rights will be formed to guard the people against the federal government as they are already guarded against their State governments, in most instances”
[Thomas Jefferson to James Madison, 1788. ME 7:98]. Jefferson was alarmed with the defects he found in the initial Constitution sent to him by Madison, and made it known he found it objectionable that there was no provision guarding against a standing army:
“I will now add what I do not like. First, the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies…”
Elbridge Gerry said:
This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. 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.In other words, the Second Amendment is not an individual right to bear anything, but a security of the people to keep and bear arms for purposes of maintaining public militias as a guard against a standing army. The House Committee on the Militia in December of 1833 had no illusion what the Second Amendment stood for when it considered modifying existing militia law in the several States to allow for the following:
…to permit each State in time of peace, in the discretion of its Legislature, to require no person to bear arms under twenty-one, or over forty years of age, and to permit the inspection of arms to be taken by companies instead of by regiments or battalions; and, also into the propriety and justice of providing arms and accoutrements at the public expense for those liable to bear arms…
First of all, it was recognized that such matters as to who can, or cannot bear arms, is up to the State legislature. If the Second Amendment was an outright individual protected right as some like to believe it is, then such proposed State laws would clearly be violating persons under the age of 21, and over the age of 40, right to bear arms under the Second Amendment.
Clearly then, the context of bearing arms is purely in a military service context since that is all the term “bear arms” imports. The term “bear arms” had the universal understanding of militarily taking up arms against another in aggression, which of course explains why there were people who were religiously scrupulous to bearing arms or supporting militias financially, but otherwise had no problem with personally owning private weapons. Quakers for example, refused to “bear arms” or contribute funds in support of the militia, yet had no objection to personally owning firearms.
President Andrew Jackson confirms the right under the Second only relates to the collective right to bear arms under militias for defense of the State:
“To take from the people the right of bearing arms, and put their weapons of defence in the hands of a standing army, would be scarcely more dangerous to their liberties, than to permit the Government to accumulate immense amounts of treasure beyond the supplies necessary to its legitimate wants.”The Second Amendment only qualifies bearing arms as part of the defense of the State, not personally, because it focuses only with the body of the people who make up the militias. There is no qualification to a right to private ownership because that would dwell into domestic concerns of a State, something the federal Constitution does not by design permit.
To me it is clear that the right to keep and bear arms must be read in conjunction with the founding generation’s determination to rely on militias, rather than a standing army, for national defense. Certainly the right to bear arms is a right of the people, not the state or federal governments. On the other hand, the right was clearly intended to guarantee the existence of militias, not for any other purpose. Further, the fact that we now are perfectly comfortable maintaining a standing army, navy, air force and marine corps and that our state militias have been themselves formalized into National Guards and Reserve components leads to the obvious conclusion is that the right to bear arms for the purpose of maintaining a strong national defense is no longer relevant in 2008.
Of course, judges are supposed to be free of the political fray which leads to the type of mess and confusion which the Second Amendment has found itself in the mind of the masses. Few are willing to discuss the true meaning of the Second Amendment as a guarantee against standing armies. On the other hand, will the justices raise this issue? There are commentators on the internet who do, but this seems lost in the piles of briefs pro and con in DC v Heller.
Additionally, the Supreme Court has ruled on this and found that the right is one to enable the body organised under the militia powers granted in Article I, Section 8 of the Constitution in
US v. Miller. Miller was reiterated in
US v. Rybar which stated that the same arguments which are being presented by Heller in this case were without merit. Which means that one Supreme Court Justice, Alito, has ruled upon this question and found the "individual right" argument without merit.
Given that my Second Amendment right is to be free from a large, standing military, that right is being violated in Washington, DC. Not by the District of Columbia's firearms laws, but by the legislature and executive by allowing the invasion of Iraq. To find that the Second Amendment allows for an individual right to own firearms unrelated to militia duty is to make logical leaps of outrageous proportion.
