4th of July and a Call for Arms

Today is the Fourth of July; the day we set aside to celebrate the day we declared independence from England and, specifically, King George III. In honor of this date we must not just celebrate the day, but, borrowing from those who celebrate Martin Luther King, Jr's birthday, who call that day a day on not a day off; we should strive to remember, and if needed, relearn, the principles upon which this country was founded. To that end, I will give my treatise on the Second Amendment.

Last Monday, June 28th, the Supreme Court handed down the decision for McDonald v. Chicago. This decision struck down a 28-year old law by the city of Chicago which banned the possession of handguns by city residents. Both the majority opinion and the dissenting opinions discussed the historical background for the basis for the Second Amendment, and just like the differing opinions of the Justices, historians have differing opinions - as pointed out by Justice Stevens - of what the historical basis is.

To this end, the defense of individuals to own firearms, I shall prove.

In an earlier blog, I referenced the English Bill of Rights from 1689. As stated before, this document was utilized by George Mason for the Virginia Declaration of Rights which was subsequently used to pen the Bill of Rights. The English Bill of Rights is separated into two distinct sections. The first section, much like our Declaration of Independence, lays out grievances of the populace to the King of England. The second section defines the rights sought by the people.

You cannot refer to one section without referring to the other. Justice Stevens does just that by only referring to what was written in the second section without benefit of the first section. In the second section, the right requested is, "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." Justice Stevens points to the phrase, "as allowed by law." His assertion is that the English weren't asking to be armed without some limitations - limitations which could be prescribed by a legislature. When taken on face value, one can see the logic in that interpretation.

When the first section is read, a different meaning comes to light. The first section in laying out grievances states, "By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law." Here the writers are stating some people are being disarmed while allowing others to be armed. Additionally, the assertion is that the government was utilizing said armed subjects against the unarmed subjects against the law of the land. The assertion being that you can't unarm one segment of the population while allowing a different segment to be armed. The question arises to the wording "as allowed by law" in the second segment. Remember, the second segment was in retort to the grievances of the first, with the first detailing actions contrary to the law. So in the second segment when they are demanding the right to be armed, the writers are saying, owning firearms is lawful, let us have firearms as "allowed by law." One could argue that if all firearms were banned, what would they have written? But that is not the case. The case here is that the people felt it was wrong for one group to have firearms and another not to have firearms.

Justice Stevens is asserting that the right to bear arms is not an individual right. In the English Bill of Rights, the writers very clearly state the desire for the Protestants to be armed "for their defense." I don't think it could be written any clearer that the possession of firearms is an individual right for self-defense against any aggressor.

When one looks at the Virginia Declaration of Rights, a different edict is voiced. Section 13 states, "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 governed by, the civil power." Here the words "well-regulated militia" are used. What did George Mason mean with the words "well-regulated militia"? The answer is found in the next few words, "body of the people, trained to arms." The militia is specifically defined as the body of people. Not a segment of the body but the whole body itself. This means everyone in the populace is considered the militia, not just those who would want to volunteer. Granted, not everyone would be accepted into the militia - as we will find out later; but the principle here is that a free state relies on its people for defense. We are those people.

What about the words "well-regulated"? The words "trained to arms" comes into play. The intent was that the militia, i.e. the people of the state, should know how to use said arms. What good would the people be in possessing arms they did not know how to use? Thus "trained to arms" was written. Now the Framers of the Constitution wrote something totally different when they wrote the Bill of Rights.

When the Bill of Rights was written, it merged the concepts of the English Bill of Rights with that of the Virginia Declaration of Rights. The Bill of Rights states in the Second Amendment, "A well regulated Militia, being necessary to the security for a free State, the right of the people to keep and bear Arms, shall not be infringed." Well there are those words, well regulated Militia, again! But look at the second part of the Amendment, "the right of the people." What are the Framers meaning here?

First off, the Framers were afraid of a government repeating the English atrocities so they wanted each State to be able to defend itself from the Federal Government, thus the phrase "being necessary for a free State." At the same time, though, they did not want the people of the States to have their rights to arms to be infringed at all, which is why they did not further specify this was for the States themselves, but, in reality, the right was afforded to the individuals of each State. Why protect the State from the Federal government if you couldn't protect the individual from the State government?

In 1792, the Federal government passed the Militia Act which specified that all able-bodied men between the ages of 18 and 45 shall be enrolled in the militia. It went further to state that each man shall obtain a musket or firelock with a specified number of cartridges or loads. So I guess they were specifying the National Guard of today? In effect yes. But at the same time, no. Realize, with a few exceptions, the militia was every able-bodied man of the state, not just those who signed up for the National Guard. The militia was considered to composed of the body of the people and the body of the people were considered the militia.

This Act was actually put into force during the Whiskey Rebellion when President Washington raised an army of over 12,000 men from various State militias. Once the rebellion action was over, the militias went back to their respective states. But does all of this really mean the Second Amendment applies to individuals?

Let's look at the words used by some of the Framers:
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." Thomas Jefferson
"Firearms are second only to the Constitution in importance; they are the peoples' liberty's teeth." George Washington
Do these sound like individuals who wanted the right to bear arms strictly limited to the State's whim? It does not sound like that to me. What I see are two Framers who wanted firearms in the very hands of the people they were to govern!

When it comes to precedent, the Supreme Court believes in following stare decisis (to stand by things decided). In New York v. Sullivan, (1964) 376 U.S. 254, the Supreme Court ruled that the Fourteenth Amendment afforded the rights under the First Amendment to the States; thus, States could not infringe upon any right guaranteed in the First Amendment. Based on this decision, it can be reasonable to apply the same reasoning to the Second Amendment. If the Federal government cannot infringe the people's right to keep and bear arms, then the States cannot do the same.

In summary, the right to keep and bear arms affords those with arms to be on the same standing as others with arms. If only one group is allowed to bear arms, then the group with arms can subjugate those without arms. This subjugation possibility is not what the Framers had in mind. A free society depends on its ability to defend itself from aggression. A free society depends on those who make up the society to be free. To be a free individual requires one to be able to defend one's self from aggression, including governmental aggression and criminal aggression. Thus the key to a free society is the guarantee that the individuals of the free society are afforded the right to keep and bear arms.

Remember, as Thomas Jefferson points out, "When the people fear the government, you have tyranny. When the government fears the people, you have liberty." What do you desire?

Mike

On a side note, I do believe in some, and very limited, restrictions on gun ownership. Much like Freedom of Speech has some limitations, the right to keep and bear arms should have some restrictions. I do not, for one, believe guns of modest power should ever be restricted to a free and just individual (this was the case of the Chicago law which outlawed handguns but not shotguns). By free and just, I mean someone who has not been convicted of a felony involving a weapon or a person judged mentally unstable by a 2/3 determination of a panel of psychiatrists. I also believe that to bear arms requires some amount of training in deadly force applications and the proper demonstration of proficiency at gun use. What we cannot have is a State which denies its people to have firearms in the believe that society will be better for it. In that case, only criminals and a tyrannical government will keep and bear arms......

References not linked:

Gardner, B. (Ed.). (2005). Black's Law Dictionary, abridged 8th edition. MN: Thomson/West.

Brainy Quote: http://www.brainyquote.com/

McDonald v. City of Chicago (2010). From http://www.findlaw.com