The Truth About The Second Amendment

BY Herschel Smith
9 months, 1 week ago

I don’t often cite, link or quote Charles C.W. Cooke because he’s an atheist and often at odds with my world and life view.  It isn’t so much that I won’t link to someone who doesn’t agree with me in every aspect of life, so much as it causes a fundamental difference in the framework in which we operate and I end up having to qualify, caveat, and explain the subtle or not-so-subtle differences.

This is an exception.

Given the way the Second Amendment is written, it is perhaps unsurprising that the confusion came to pass. Indeed, in 1880, the great scholar Thomas Cooley all but anticipated it in what was likely the most widely read legal textbook of the era. “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia,” Cooley noted in his General Principles of Constitutional Law. “But this,” he explained, “would be an interpretation not warranted by the intent.”

The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or 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.

[ … ]

Indeed, to be cognizant of the history is to arrive at one clear and unmistakable conclusion: that the “collective right” theory is just nuts. As a 1982 Senate report on the meaning of the Second Amendment concluded bluntly, it is “inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

That word, “inescapable,” is a good one, for it is simply impossible to review the post-Revolution era and come away with the impression that the Second Amendment protects some convoluted state-led right. Even if we ignore that the word “people” is used in the self-evidently individual protections that surround the Second Amendment — and even if we ignore that James Madison proposed to insert the “right to bear arms” next to the other individual rights listed in Article I, Section 9, and not next to the militia clause in Article I, Section 8, clause 16 — a brief audit of contemporary interpretations tells us all we need to know.

It may seem remarkable to modern sensibilities, but it was not at all unusual in the 19th century to read politicians and scholars openly worrying that the people might be left unable to remove their government should the course of human events run sour. In Letters from the Federal Farmer 53, Richard Henry Lee proposes that “to preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.” You will notice, I assume, that Lee’s purpose in hoping that “the whole body of people always possess arms” is “to preserve liberty” rather than, say, to “defend the country” or to “prevent domestic insurrection.” That matters a great deal, demonstrating as it does that we are talking here about something other than a proto–National Guard.

Lee’s view was neither outré nor limited to his particular anti-Federalist worldview. On the contrary: His assumptions were echoed across the political spectrum and throughout the century that followed. Explaining the unamended Constitution in the Pennsylvania Gazette in February 1788, the Federalist Tench Coxe celebrated that “the 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.” A year later, in the course of endorsing the proposed Bill of Rights, Coxe confirmed that the Second Amendment was designed not to protect the nation, the states, or the federal government, but to protect the people: “Whereas civil-rulers,” he wrote, “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.” It would, of course, be preposterous to suggest that such a rebellion would be carried out under the auspices of a federal government that enjoyed plenary power over the militias

He begins with the usual focus on militia (usual for most commentators on the second amendment) and the utility and uses of peaceful carry.  But eventually he reaches the apex of his argument, and I am in total agreement with it.

We need to see the use of the term militia in the context of the time in which this was written.  The notions that a man had a right to weapons, or that he also had the right to overthrow his government if it was guilty of tyranny, were so widely accepted as to be pre-theoretical.  Thus, the notion that the right had to be codified in order for it to be understood or accepted is preposterous.

On the other hand, all the founders needed in order to object to federal control over such God-given rights is to find a single example of such an infringement that would be found unacceptable.  The militia served as this example.  That doesn’t mean that it is, would have been, or must have been, the only example or reason for the amendment.  The amendment clearly states what the FedGov shall not do, not what it can or may do or the sole reasons for its existence.

So a man has a right to the ownership of weapons if he is a paraplegic and unable to serve in the militia.  A people have the right to overthrow their government whether there is such a thing as a militia or not.  I can tell the militia (whatever that is in this context or any future context) to go pound sand and that I refuse to join, and it has nothing whatsoever to do with either [a] my God-given rights to keep and bear arms for self defense or the amelioration of tyranny, or [b] the fact that that right is recognized in the constitution, which is a covenant under which we have agreed to live.

My rights (and duties) flow from the Almighty, the very fountain of liberty.  The constitution is a mere covenant.  The Bolsheviks should tread carefully.  Breakage of that covenant means more than they think it means.  To them I say, be careful what you ask for.


Comments

  1. On August 12, 2018 at 11:31 pm, Georgiaboy61 said:

    @ Herschel

    “My rights (and duties) flow from the Almighty, the very fountain of liberty. The constitution is a mere covenant. The Bolsheviks should tread carefully. Breakage of that covenant means more than they think it means. To them I say, be careful what you ask for.’

    Indeed and well-said…

    Self-defense – to include the defense of one’s loved ones and possessions – is a basic human right, notwithstanding what the Magna Carta and the U.S. Constitution and Bill of Rights state. These liberties predate any man-made document, and supersede such.

    Averting our eyes from the United States for a moment, let us examine the Swiss, that race of riflemen. They have been free for centuries, and despite the upheaval of the Great War, the Great Depression, and the rise of fascism and communism in Europe and then the Second World War, the Swiss have retained their freedom. No Holocaust took place on Swiss soil.

    Why? Because the Swiss are – and have remained – a nation of riflemen, dedicated to preserving their time-honored traditions, freedoms and way of life against all threats against it. Hitler did not invade Switzerland – a testimony to the deterrent value of an armed citizenry.

    A quote, perhaps apocryphal, by Imperial Japanese Navy Admiral Isoroku Yamamoto, speaks to the reluctance of the Japanese to invade the U.S. mainland in WWII, fearing a rifleman behind “every blade of grass.”

    Given these developments in the history of the 20th century, it is perhaps unsurprising that the powers-that-be have spent considerable effort trying to deprive free people of arms, whether the EU trying to get the Swiss to surrender their rifles, to the anti-gun statists trying the same in the United States.

    The Second Amendment is functioning exactly as it was intended to function, i.e., as a brake upon tyranny. It is the line in the sand which must be protected at all costs – for once the people are disarmed, they are defenseless against those who would prey upon them. And prey they will…

  2. On August 13, 2018 at 8:29 am, Frank Clarke said:

    It is the most closely-guarded secret in all of American history that the 2nd amendment was meant only as a means to enable states to maintain their own armies. Over the centuries, those opposed to this idea have methodically tracked down and destroyed any and all documents surviving from the founding era that might have suggested this. That, and that alone, is why there is today not a single scrap of documentary evidence supporting the eminently reasonable view that the right of the people to keep and bear arms in fact means something entirely different than what a plain reading of the text suggests.

    Dan Brown’s bestselling “The DaVinci Code”, in fact, was originally going to expose this vast conspiracy, but sinister forces within the publishing industry conspired to change Brown’s blockbuster story to something less controversial. They’re everywhere. We’re doomed. ;-)

  3. On August 13, 2018 at 8:49 am, Frank Clarke said:

    “He begins with the usual focus on militia…”

    This is, at its core, a losing strategy. I much prefer starting at the nation’s founding document, the Declaration of Independence: “…that they are endowed by their Creator with certain unalienable rights…” among which is ‘life’.

    If one has a right to one’s life, it must follow — must — that one has a right to defend that life, and that requires also the right to the means of that defense.

    To assert that I have not the right to the means of life’s defense denies that I have the right to defend it and that therefore I have not a right to my life. No one can reject the fundamental axion of the American system and still call themselves “an American”.

  4. On August 13, 2018 at 9:19 am, JoeFour said:

    Outstanding post! Thank you, Captain Smith!

  5. On August 13, 2018 at 7:46 pm, Scott in Phx said:

    Actually, William Rawle beat Cooley by about 50 years writing that –

    “The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

    Notice that he also correctly saw that the 2A was a restraint on BOTH Federal and State power.

    Barron and the other decisions restricting the operation of the BoR to the Congress were wrong when they were decided.

    The BofR should have been implemented long before the “legal fiction” (Thomas’s words in MacDonald) of “incorporation”.

  6. On August 13, 2018 at 7:46 pm, Scott in Phx said:

    sorry, writing in 1829, beating Cooley by 50 years.

  7. On August 13, 2018 at 7:59 pm, Fred said:

    Scott in Phx, and the legal fiction of the “Citizen” created in the 14th amendment did grant the federal dot guv jurisdiction directly over a real person where none existed prior except as to High Crimes. All fed authorities prior to this were specified responsibilities in running a general government for the COMMON good. I realize this is slightly off topic but germane none the less to the legal fiction point.

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This article is filed under the category(s) Second Amendment and was published August 12th, 2018 by Herschel Smith.

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