It is essential to understand the purpose of the Second Amendment, in order to understand what is repugnant to it.
The Revolution was not a crime, it was a noble act.
Let the time never come when hubris in office shall have overcome humility in public service and the government we have created shall have rendered impotent the soap box, the ballot box, the jury box, and the cartridge box, for we shall be in dire distress. The True Vision of the Founders, regarding the armed citizen, is that we may, acting en mass, restore the power of the soap box, the ballot box, and the jury box, by the cartridge box, P.R.N. -->
"[T]he security of a free state" is thus as much the security of the freedom of the individuals from an abusive government as it is the security of the functional state of the organs of the government. portions of the people can be found. There is no power or restraint in the hands of the Government against a general insurrection involving the majority of the people arising in most of the States. The Southern States rebelled in 1861, and lost. If the Northern States had decreed succession in 1861, the President, the Army, the Congress, the Courts, and the Southern States together could not have prevented it. --> If the whole people are armed, then corrupt Kings and their armies can be overthrown by the whole people arising. This is one of the great and central objects of the Second Amendment: that no Army that could possibly be raised, be it supported by whatsoever equipment it could procure, that could hope to prevail against the People at large, if they, the people, are determined in general to have something brought to an end.
In Federalist No. 46, written prior to the ratification of the Constitution, James Madison discussed how a federal standing army, which he estimated in 1788 would consist of "one twenty-fifth part of the number able to bear arms," might be checked or controlled:
"To these [the standing army troops] 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 united and conducted by [state] 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. Those who are best acquainted with the late successful resistance of this country against the British Arms will be most inclined to deny the possibility of it."State governments not possessing the affections of the people would be subject to the same check as the federal government: Annihilation.
Noah Webster said it quite well:
Another source of power in government is a militiary force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A militiary force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
From Mr Madison's and Mr Webster's words, we may see the pattern of thought on two facets of the matter before the Court:
The Second Amendment, therefore, addresses more than what Mr. Justice McReynolds wrote in US v. Miller 307 U.S. 174,177 (1939),
The Constitution as originally adopted granted to the Congress 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 prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made...the Right of Arms, and therefore the Second Amendment, has also to do with negating perfidious government whereby to restore the common liberty (under a new government).
The legal and social structures of the Constitutional Model of the United States (and the states severally) rested upon the Militia, being the whole people, bearing their own arms, acting together to enforce just laws and apprehend felons, acting separately in their own defense, and acting en masse to check tyranny. We had just endured tyranny by our own King, we fought a bloody, costly, 8 year war to throw off that tyranny, and we knew that tyranny could arise amongst us in the future. That liberty should be preserved and tyranny restrained or exterminated, the people must remain fully and freely armed, and trained in their arms. Thus did they reason who wrote the Constitution, thus did they reason who wrote the Bill of Rights. They held the Right to oppose and overthrow tyranny to be preserved under this new Constitution and Bill of Rights.
Summary: Exercise of the Right of Resistance to Tyranny, which we held to be a right we owned, requires the use of arms, including handguns. Disarmament statutes are, therefore, in stark opposition to the Constitutional model of our Government. This statute is a disarmament statute, and is unconstitutional as invasive of our Second Amendment right and duty to resist tyranny in government.
Showing that each state reserved the Right to Arms to it's people will show that the Second Amendment did the same. Showing that each state held "militia" to mean the whole body of the people will show that the Second Amendment holds the same. Showing, thereby, that the need for a militia was a need for an armed citizenry, will show that disarmament statutes are unconstitutional.
Whereas:
Therefore measures were taken to prevent disarmament efforts by future governments. Four States put an explicit Right to Arms clause in their Constitutions or Bills or Declarations of Rights. Four others did so implicitly by putting "well regulated militia" in their Declarations and Bills of Rights, in a context where "militia" meant the whole body of the people bearing their own privately owned arms. Four states had no bills of rights at all, of which two had no Constitution at all; the Right to Arms was personal and uninfringeable in them all..
The conclusion we shall reach has already been given in U.S. v. Miller 307 U.S. 174,179 (1939) where Justice McReynolds states (emphasis added):
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for militiary discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Herein is tabled those measures, taken from their Constitutions except as noted. Together they showed that the Right of Arms was as vital to the security of a free state as the Right of the citizens to Vote.
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From this it is obvious that the Right of Arms was individual, fundamental, universal, and both a Right and a Duty. New York State cannot pretend that it has not recognized an individual Right to Arms, including handguns, from the beginning. It's charter rests upon it's duty to the people, and to the preservation of their rights, explicitly including the Right to Arms, handguns included. New York State has not received authority from the people, nor ever will, to reduce their Right to Arms. Suffice it to say that were a Grand Jury studying this matter made of any twelve signers of the Constitution, they would have laughed this statute out of Court, and refused any indictment; a similar trial Jury would swiftly acquit any and all persons accused thereunder. That is a simple and perfect test for whether a statute (or Supreme Court Judgement) is unconstitutional. This Statute is outside the authority of the state, and is therefore unenforceable.
A skill not easily mastered, is that of interpreting silence. The Right of Arms itself was not debated anywhere in the time period in question (1787-1791). Debate arose on whether that right was threatened, not whether it existed, and whether a Bill of Rights reciting that right was the cure for the threat. laughable to the members of the first Congress. Fisher Ames, representative from Massachusetts in the First Congress, described Mr. Madison's proposed Bill of Rights in a letter to Thomas Dwight: "...<lists most of the original amendment proposals, excepting what is now Amendment 2> This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms. Friends, withhold your laughter?" (OSA (DHBR) p668). -->
Germane to the Defense against the criminal charge laid against us is that, along with every other state, New York, via it's ratification debates upon the Constitution itself, it's senator's and representative's votes on the (proposed) Second Amendment, and in it's State ratification debates on the Second Amendment, supported the individual, uninfringeable Right of Arms.
New York began ratification debates on the proposed federal Constitution 26 July 1788. Their work resulted in a lengthy oratory on human rights, and a proposed bill of rights, for like Virginia, New York's ratification of the Constitution was made contingent on the creation of a Bill of Rights. Among the many things in that lengthy proposed Bill of Rights:
"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. (Bickford & Viet, 4:20, italic emphasis original!)
Summary: The Right to Arms belongs to every individual. New York cannot deny it's own role in establishing both the Constitution of the United States, and the Bill of Rights, as protecting what New York State declared was an unabridgeable, inviolable, individual right: The Right of the People to Keep and Bear Arms. New York has recognized the personal right to arms as independent of and superior to the statutory authority of the states, existing in every state, and every state has recognized the same as existing in New York. This statute seeks to contravene this precious right.
Throughout the Constitution, "People", "States", "Congress", "Power" and "Right" arise constantly. Some few speakers, albeit influential with Legislators, Executives, and Judges, attribute the Right to Keep and Bear Arms, as delineated in the Second Amendment of the Constitution or the United States, as something belonging to the States, severally, or to organized groups operating under state sanction and control, and not to individuals personally. The following argument by Stephan Halbrook Esq. from his Amicus brief in U.S. vs Emerson, debunks such doctrine.
THE CONSTITUTIONAL TEXT CONSISTENTLY
USES "THE RIGHT OF THE PEOPLE" TO REFER TO
INDIVIDUAL RIGHTS, AND DESCRIBES STATE
PREROGATIVES AS "POWERS"
The Second Amendment to the U.S. Constitution provides: "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 defendant here [Dr. Emerson] is charged with possession of a firearm after a court entered a routine divorce order, without making any findings, prohibiting him from using physical force against an intimate partner. See 18 U.S.C. § 922(g)(8). If the Second Amendment guarantees the personal right of an individual to keep firearms, then the prohibition on possession of a firearm based solely on entry of a court order without findings is unconstitutional.
The following sets forth a textual analysis of the Second Amendment.
The Constitution utilizes consistent word choice throughout: the "United States" and the "States respectively" have "powers," while only "the people" have "rights," although the people also have "powers." "'The people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community . . . ." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
In fact, the term "right" is always used to refer to individuals, which are usually referred to as "the people." See
The Framers also knew how to distinguish the "militia" when on duty from the term "the people." The Fifth Amendment provides in part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except . . . in the Militia, when in actual service in time of War or public danger . . . ."(Emphasis added.) Thus, "the right of the people to keep and bear arms" cannot be limited to the exercise of that right only by "the Militia, when in actual service," an argument suggested by those who claim that the Second Amendment protects only the National Guard. Quite simply: the Second Amendment does not refer to "the right of the militia, when in actual service, to keep and bear arms." The Framers used such language elsewhere and did not find it appropriate for the Second Amendment.
The federal and state governments have powers, not rights. E.g.,
It is striking that the State power to maintain militias vis-à-vis the federal militiary power was already treated in the text of the Constitution before the Bill of Rights was proposed, and the language of this State power does not contain the individual-rights vocabulary of the Second Amendment. Article I, § 8, Cl. 15 & 16 provide that "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 prescribed by Congress;" (Emphasis added.)
Thus, "power" and "authority" (not "right") over the militia are "reserved" (not "shall not be infringed") to "the States respectively" (not "the people"). In other words, the state power over the militia is reserved to the states respectively, but the right to keep and bear arms is reserved to the people.
Further, "[t]he Congress shall have power" "to raise and support armies" and a navy, Article I, § 8, Cl. 12 & 13, but "no state shall, without the consent of Congress, . . . keep troops, or ships of war in time of peace, . . . or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Article I, § 10, Cl. 3. The contrasting use of the word "keep" is instructive. No state shall "keep troops," but the people have a right to "keep . . . arms." The Second Amendment does not say that "the power to keep militia troops is reserved to the States respectively." Notice also that "the people" have the right to "bear arms"; it makes sense to say that no state shall "keep troops," but it would be strange to say that a state shall or shall not "bear arms," because a state cannot carry arms, only an individual can. Of course, the Framers could have said that "no state shall keep troops who bear arms unless actually invaded, or in such imminent danger as will not admit of delay." But that strict limitation does not exist in the Second Amendment. "The people" have a right to keep and bear arms on a permanent basis, and are not limited to bearing arms as state troops when the state is "actually invaded, or in such imminent danger as will not admit of delay."
The term "the States respectively" reappears in the Tenth Amendment, where it is distinguished from "the people": "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." As examples, the power to raise armies is delegated to the United States and prohibited to the States, while the power over the militia is reserved exclusively to the States, except as delegated to Congress in Article I, § 8. The Tenth Amendment clarifies that "the people" have "powers" as well as "rights." These powers include suffrage, jury service, militia service, and other institutions in which the people govern, administer justice, keep order, and otherwise participate in political society. E.g., U.S. Const., Art. I, §2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second year by the People of the several States"). By contrast, the state and federal governments have "powers" only and no "rights." Only individuals have "rights."
Finally, governmental powers are "delegated" or "reserved"; only rights retained by the people may not be "abridged" or "infringed," terms found in the First and Second Amendments. The former refer to authorized powers of government, while the latter refer to individual rights excepted from the exercise of governmental powers.
The Second Amendment begins with a clause declaring a political principle about the militia, followed by a clause declaring a substantive right. Its structure is equivalent to the following: "A well educated citizenry, being necessary to the culture of a free state, the right of the people to keep and read books, shall not be infringed." It would hardly do to argue that a government-selected intelligentsia is today's well educated citizenry and thus that this group is the only entity with the right to keep and read books. Indeed, the right would extend to people who were not "well educated," since they are among "the people." Nor is it tenable to argue that the National Guard is the militia, only its members have a right to keep and bear arms, and then only when on duty.
In short, the constitutional text mandates the conclusion that the Second Amendment guarantees a personal, individual right to keep arms.
End of quote.
Comment: "A well educated electorate, being necessary to the security of a free state, the right of the people to own and read books shall not be infringed" paraphrased from Mr. Halbrook's Amicus brief above, does not only not limit book ownership to a "state-licensed intelligentsia", nor even only to registered voters, it further does not limit what books we may own to those on a list of state-approved texts of political nature. Book ownership in it's entirety is reserved completely out of the powers of government. We may write our own, large or small as we please, publish to sell to whom we please, rip out pages of books we make or buy that we don't like and make "short-barrelled bibles", but when we invade the peace or freedom of another, we then "need hangin'!".
Summary: Whereas it is obvious that the right of the people to keep and bear arms is reserved out of the powers of government, the State cannot pretend that prohibitions on individuals keeping their own arms is within it's police powers. This statute is violative of the Second Amendment, and is unconstitutional. It also has been demonstrated that any "collectivist" reading of the Second Amendment is groundless.