Skip to comments.A Brief Inquiry into the Nature and Value of the Second Amendment(FL)
Posted on 10/27/2011 6:58:16 AM PDT by marktwain
There is no Second Amendment right to keep and bear arms. The Second Amendment simply tells us that the right to keep and bear arms shall not be infringed. Unlike the First Amendment's prohibition against Congress making laws abridging certain rights we hold dear, the Second Amendment is an outright prohibition on all branches of our federal government from infringing on our right to defend ourselves.
For a right to be infringed, it must already exist. The right to self-preservation is among the inalienable Jefferson spoke of in the Declaration of Independence. Without the right to defend life and liberty, those rights are devalued to academic dogma. The right to self-preservation, the right to defend life was not arbitrarily provided to us by fiat from a crown, a delegation of elected officials or a piece of parchment.
The right comes from God (or nature if you prefer). The mere fact that you breathe, the fact that you were given the gift of reason, providence dictates your right to flourish.
The greatest testimony to life is man's birthright to defend himself from both prince and the criminal populace. This defense is not limited to life, but history shows its application to property as well. In his essay on The Necessity of Taking Up Arms, Jefferson declared, "In our own native land, in defence of the freedom that is our birthright, and which we ever enjoyed till the late violation of it...for the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before."
Jefferson and his contemporaries understood the need to keep and bear arms. They understood that the crown could, at any time and without warning, find himself free of constraint; and whether due to greed or survival suddenly force his subjects to submit to his every whim. Without violent resistance against the abuses of government, no man can secure his family. William Pitt understood the distinctly American character; it was more enterprising, more violent, less refined than their English cousins. He said, "If I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never lay down my arms - never - never - never. You cannot conquer America!"
In the same vein, if a thief comes to a man's house to rob or murder him, Dalton prays he "takes a stand and defend his house by force; and if he or any of his company shall kill any of them in defense of himself, his family, his goods or house, this is no felony." Men have the right to protect themselves when no one else can or will protect him.
To disarm those predisposed to freedom and liberty, those not inclined to do harm or determined to commit crimes, violates the most basic laws of humanity. Let's remember the lesson learned by Suzanna Hupp. On Wednesday, October 16, 1991, Suzanna and her parents were having lunch at Luby's Cafeteria in Killeen Texas. As a law-abiding citizen, she complied with state law and left her gun in her car. While she and her parents were eating, George Hennard drove his truck into the cafeteria and then opened fire on the patrons. Both of her parents were murdered, along with twenty-one other people. But for her desire to obey the law, lives may have been saved. Texas has since changed its law, but sadly many states continue to forbid its people the right to defend themselves.
Every man must consider arms to have a rightful place in our social compact. It is not only our inalienable right, but our duty. Our failure to have the means to defend ourselves, our loved ones, our friends, and those we have not yet had a chance to befriend breaches our obligation to mankind. It is our right and our plan to live in peace, to harm no one and love life, but when someone with evil in their heart threatens to destroy that which is not theirs to rightfully attack, it is our obligation to take a stand and to defend, and to destroy if given no alternatives.
A rule, by contract or statute, denying a man his right to defend life and those among him is ground in an injustice so obscene no primitive would knowingly consent.
Today some people and businesses would rather maintain their own marrow-minded ideas that government can protect their employees and customers. These misguided souls are unable or unwilling to accept the premise that our civil servants cannot stand with us as we go about our day. The reality is, those sworn to protect and serve require time to come to our aid; and rarely is the criminal willing to delay his effort to wait for their arrival. The only outcome must be complete rejection of these restrictions, whether on the grounds of an amusement park or in a library's parking garage. Hobbs said it best "A covenant not to defend myself from force, by force, is always void. No man can transfer or lay down his right to save himself from death."
Now that we have examined all that the Second Amendment is not, let's take a moment to determine what it is. The Amendment begins, "A well regulated militia." Today, the word regulated brings up images of bureaucrats, red-tape and the many alphabet agencies like the EPA, FDA and OSHA.
The term "regulate" is also found in the Constitution's Commerce Clause where, in Article One, Second Eight Congress has the power to "Regulate Commerce with foreign nations, and among the Several States, and with the Indian Tribes."
Now it's easy to understand why those in Congress would like us to believe that the founding fathers intended the word "regulate" to mean "manipulate" or "restrict" since it would provide them with nearly infinite authority. But if the regulation of commerce were intended to mean something so vast, why would the founding fathers have bothered to mention any other power Congress may exercise. Would anyone deny Immigration laws regulate commerce? Coining money? The establishment of Post Offices and Post Roads? Of course not. It would be redundant. So why did the founding fathers discuss both the power to regulate commerce and the power to provide for and maintain a navy? Because the term "regulate", in Colonial times, did not mean to tie something down with rules. It simply meant to "make regular", or "make function". If we move this context to the Second Amendment, we find a desire by the founding fathers to have a well functioning militia. A band or assembly of free men allowed to keep, carry and train with firearms. Individually and as a team.
Continuing, "Being necessary to the Security of a free State." How would a well-functioning militia be necessary to the Security of a free state? It wasn't long before the ink dried on the parchment containing the Declaration when that very same well-functioning militia prevented the finest musketmen in the world from capturing the arsenal in Concord. Adam Smith paints an emotional picture of the political landscape of the time, "Men of Republican principles have been jealous of a standing army as dangerous of liberty. The standing army of Caesar destroyed the Roman Republic. The standing army of Cromwell turned the long parliament out of doors." There was distrust, in some cases pure hatred directed towards a standing army; and the only thing that could stand between a standing army and a free state was the well-functioning militia. We continue "The right of the people to keep and bear arms, shall not be infringed." We have now gone full circle back to our initial premise, that the right of the people to keep and bear arms existed prior to the Constitution and is superior to it.
And so we have it. A well functioning group of citizens generally comprised of every adult male required to own a firearm to assist in maintaining a secure, free state. The fear of the standing army was so strong, the right was not to be infringed.
Now it is unlikely that we will ever be called into serve as militiamen, so why does this inalienable right extend to our concealed handguns? Again, the answer is best found in history. It wasn't until 1845 when the first police force was formed on American soil. And then it was the police that were unarmed. It was the prevailing wisdom that should a police officer require a firearm, they would enlist the services of an armed citizen. While we attribute the right to keep and bear arms for self-defense as one of Jefferson's inalienable rights, the British Jurist Sir William Blackstone refers the right to bear arms for self-preservation and defense as a primary law of nature that cannot be compromised by the law of society.
So you see, there is no Second Amendment right to keep and bear arms. The Second Amendment stands to protect a right that was already there.
Does this mean we can own tanks and aircraft, maybe have our own armies and navies?
To put this whole essay another way, the Right to Keep and Bear Arms would exist even if the government stated outright that it did not.
The general rule of thumb that I have seen, and which is sensible, is that private individuals should by law be permitted arms up to the same basic armament as an army infantry soldier. This was the standard in the time of Washington and Jefferson; we don't quite meet it today.
Very nicely put!
“...providence dictates your right to flourish.”
Too many today think they have a right to flourish. They don’t. What they have is a right to try to flourish, to do the best they can to flourish.
“...maintain their own marrow-minded ideas...”
I wonder if “marrow-minded” is the same as “bone headed”.
The author is partially correct. When written, the Bill of Rights (including the second amendment) was a limitation on the federal government only. It's ludicrous to think the Founding Fathers would impose those restrictions on all the states. After all, the states had their own constitutions.
But the author is wrong when he assumes the second amendment was written for personal protection. If it was, there was no need to mention militias.
I can’t imagine applying for a CC permit for a grenade.
Hey! I own an aircraft. What is wrong with that?
The mention of the purpose of a well regulated militia in no way limits the protections of the Second Amendment to militias only.
In the early republic, many people and judges understood the Second Amendment to apply to the States as well as the federal government. The First Amendment states that "Congress shall make no law" the Second Amendment states that the right "shall not be infringed".
No, of course not, but can it be used as a weapons or munitions carrier?
Nothing, could it be converted for low-level bombing or ground-support?
It's an NFA destructrive device. With the appropriate Federal Firearms license you can have one, but the $200 transfer tax has a tendency to discourage practicing.
“If it was, there was no need to mention militias.”
Wrong. There was no standing army, & the founders did not want a standing army. The militia was We The People - able-bodied citizenry prepared to be called to duty should the need arise.
Besides, the key phrase is ‘the right of the people’. You might want to do a search on the internet for “The Unabridged Second Amendment” by J. Neil Schulman.
I guess you never read the 10th Amendment?
I was not aware of that. Do you have any links or court cases which support that?
He consults a linguistics expert? Sorry. I'd rather accept established U.S. Supreme Court cases when it comes to constitutional interpretations of the second amendment.
"Besides, the key phrase is the right of the people."
True. It's key because it reads "the people" -- not "all persons" or even "all citizens".
Who were "the people" for whom this right was protected? If you get that answer correct, then you're on your way to properly interpreting the second amendment.
You’re right, I am discouraged.