One Rogue Judge, and the Second Amendment’s Forgotten Roots

In the case of Kolbe et. al. versus O’Malley, a class of various American individuals, businesses, and associations rightly challenged Maryland’s outrageous 2013 law banning honest, law-abiding citizens from possessing – not just public carrying, but possessing – several classes of firearms, such as the AR-15, and weapons – even pistols! – that hold more than ten rounds.

The Federal District Judge hearing the case, a Clinton appointee named Catherine C. Blake, disregarded both legal precedent and two hundred years of scholarship, in holding, outrageously, that this blatantly unconstitutional state law was constitutional.

Judge Blake declared that AR-15s and similar weapons “fall outside Second Amendment protection as dangerous and unusual arms,” and therefore can be prohibited if a government wants to do so.

Now, the several state governments clearly have the authority to punish those who commit real crimes with firearms. Virtually no one argues that convicted bank robbers, violent rapists, murderers and muggers, couldn’t be forbidden from possessing firearms as part of their condition of parole, if society is foolish enough to release them in the first place. (The reason this exception is not addressed in the Constitution is that, in the Founding era, this exception was simply not imagined; there was no need. In their day, no sane government would release such villains into the general public ever again). But that’s not the issue here. This is a rogue state government choosing to deny law-abiding citizens a constitutionally-guaranteed right, and a Federal Judge violating her oath of office by giving them cover.

As justification for her ruling, Judge Blake parroted a few of the anti-constitutional side’s standard objections:

•To her, the pro-gun side didn’t cite sufficient statistics proving to her that these particular weapons were regularly used in self-defense incidents in Maryland (Never mind the fact that most self-defense incidents aren’t reported or tabulated to the same extent that the belligerents’ weapons are. And never mind the fact that the Second Amendment is as much a deterrent as a tool to be used; there are no records available, or even possible, on how many times burglars chose not to rob the house with a “Protected by an AK-47” sign in front.)

•To her, these particular types of weapons are only owned by a tiny percentage of the population (never mind the fact that our Constitution was designed throughout to protect the minority, not just the majority alone).

•To her, these are unusual, not “normal” firearms (never mind the fact that the carve-out for the “unusual” exists only in the eighth amendment; if the Founders had intended such a carve-out in the 2nd, no doubt they would have put one there too).

•In her mind, the Founding Fathers didn’t intend to protect the kind of weapons that only the army would normally use (never mind the context of the Bill of Rights, which was written by revolutionaries who had just won their independence from a tyrannical government, and who were writing a document designed to empower the people to do so again if needed).

To merely state that Judge Blake is wrong should go without saying. The Second Amendment says “the right of the people to keep and bear arms shall not be infringed.” What part of “shall not be infringed” does she – and her side of the partisan debate – fail to understand?

An infringement of this right is unconstitutional, and her job is to defend the Constitution; her ruling therefore would justify an impeachment, if only the U.S. Senate had the honor to do its duty.

Any honorable opponent of the right to bear arms would have to concentrate on amending the Constitution first, but the proof of their dishonor is that they blatantly disregard their oath to uphold it, then go ahead and undermine it like this.

What I, personally, find striking, however, is not the opposition to firearm rights or the dishonor – we’re used to seeing both – it’s the denial of history… because when Judge Blake writes that the Second Amendment was not written to protect the weapons commonly used by the military, she is not only wrong, she is 180 degrees from the truth. The Second Amendment was in fact written PRECISELY to protect the civilian ownership of those weapons!

In the spring of 1775, George Washington was a delegate to the Continental Congress from the British colony of Virginia. Like the other members of his delegation, he had traveled up to Philadelphia from Virginia to discuss the colonists’ proper reaction to the ongoing tyranny of the Hanoverian King of England, George III. Unlike many other members, however, George Washington already had a feeling that independence was the only proper response, after decades of abuse, after decades of the distant Crown turning an ever-blinder eye to our complaints.

Delegate George Washington had taken to wearing his military uniform to the meetings of Congress, instead of a normal business suit. While the other delegates attended in ruffles and powdered wigs, leggings and frilled coats – yes, even other delegates with military experience – Washington stood out as the man of military bearing at Independence Hall.

He wore the uniform he had himself designed, in the colors he had picked for the Virginia militia, years before, when he gained worldwide renown for his service in what came to be known as the French and Indian War. A striking uniform of blue and buff, it was every bit as sharp as the red and white uniform of the British, with a color contrast severe enough to demonstrate that we were on very different teams.

When it came time, that spring, for the Continental Congress to select a Commander in Chief for the Continental Army, though there were other hopefuls, there really was only one logical choice. The gentleman from Mount Vernon was selected, and sent to Boston to take command of troops already massed outside Boston.

The biggest city in New England had now been under martial law for seven years; every plea for reason had been rebuffed with greater tyranny. The British were stationing soldiers in people’s homes, limiting their entry and exit on the town borders, restricting their trade. So local militia had finally sprung up and headed to Boston, gathering outside the city in preparation for unavoidable war. The newly commissioned Commander in Chief’s job would be to organize them and make the best he could of the situation. It wasn’t an enviable job.

When General Washington arrived at Boston in July, 1775, he was horrified to see that our troops – essentially, a collection of local militias from various areas in New England – were rank amateurs. There were a few commanders who had seen military service, of course; many of the officers had served in the British army or navy in the past, and so had a few other recruits.

But most were untrained. While many had a firearm in the home, for hunting or defense, they didn’t tend to be experts at it. Even today, hunters know that one can go an entire day in a deer stand and only fire your weapon once or twice; hunting isn’t itself conducive to the level of practice that makes one an expert, ready for the rapid-fire needs of the battlefield.

Also, many of the villages in those days had a common town storeroom for rifles, ammunition, and powder, so that when an Indian raid or other threat appeared, everyone would rush to the armory to equip themselves. Without regular practice, this too is hardly conducive to building expertise with one’s weapons.

General Washington wasn’t entirely shocked at the situation in Boston; he had seen it, to a lesser degree, when he’d commanded militias twenty years before. But then he had had the budget of England, so he could drill his men and familiarize them with their weapons, and he had at least some time. The situation in Boston was different. These men had been there for months, luckily without a confrontation. The General must have been relieved at that; many of these men had still not fired their weapons, and they had too little powder to “waste” any on training and marksmanship lessons! Also, critically, remember that flintlock weapons are a lot harder to use than modern weapons, and much more cumbersome to load quickly.

As Washington led the forces of the Glorious Cause (as the fight for Independence was known in those days), he devoted much of his time to the simple education of Congress on how severe was this lack of experience with firearms. He had to make do with the slow learning curve of men who were clumsy with powder and took time reloading, time that we would not have in battle conditions. And he had to make do with a nonexistent budget; there was no money for black powder and ammo for practice, so there simply was no practice, not at Boston, nor in the next couple of years.

Not until February of 1778, when Baron von Steuben arrived at Valley Forge and General Washington assigned Col. Hamilton and Gen. Greene to assist him, did the American forces truly begin to have a training program worthy of the name.

After three years of reading dispatches from the General, the politicians back in Philadelphia got the point: You just can’t shove a rifle in a recruit’s hands for the first time, and expect him to do well with it in battle the next day.

Your men need to have grown up with rifles; they need to have had them in the home, practicing marksmanship, when they were growing up as civilians. So you need a nation with a prosperous enough public to be able to “waste” ammunition on target practice at home. You need a nation of men who recognize their duty to hearth and home, to state and country, to be truly prepared to take up arms if called upon. It’s not enough to be willing; you have to be able. And that means familiarity from childhood with the weapons you might one day need on the battlefield.

The men who wrote the many state-level lists of rights – known as “bills of rights” during the War of Independence – were the very same men who were spending the war communicating with General Washington and our other officers. The politicians – at the state level as well as the national – were getting a daily education on what level of expertise is needed from the citizenry if they are to be entrusted with their own defense. So each state, in writing their state constitutions, made a point to include the right of civilians to be armed, not only to defend themselves, but to be prepared to defend their nation at a moment’s notice.

When the ten amendments that came to be known as “The Bill of Rights” were prepared for addition to the Constitution of the United States a few years later (demanded as a necessary condition for ratification by several states, in fact), the politicians (George Mason, James Madison, et. al.) remembered these lessons, and carried forth the same intent. No more would America depend on people rushing to an armory in time of trouble, having to familiarize themselves on the spot with complex weaponry, putting themselves and their colleagues in danger of accidental misfires, clumsy explosions, poor aim or slow handling in battle.

So the Second Amendment was written with an introductory clause, to hammer home this very point. It doesn’t just say “The right of the people to keep and bear arms shall not be infringed.” It could, and that would certainly be sufficient under the law. It would protect all our rights, and all our reasons, for owning and carrying weapons – from self defense and hunting, to the noble hobby of marksmanship, to the goal of patriotic readiness in case the military ever needed us.

But that wasn’t enough for them. They added an introductory note first: “A well-regulated militia being necessary to the security of a free state…”

They needed to hammer home this one critical point, so none could ever misinterpret it!

The right of the people to defend themselves should go without saying. The right of the people to hunt for food or sport should go without saying. The right of the people to practice rifle or pistol marksmanship, as a harmless and enjoyable hobby, should go without saying. In the eyes of the Founders, this was all obvious. But the right of the people to keep and bear arms, the right of the people to be ABLE to defend themselves from a tyrannical government, still needed to be put in print, in the eyes of the Framers.

And, strikingly, the introductory clause shows us that they also wanted to stress, in writing, for posterity, that they had learned the lesson of the early days of the War of Independence.

They wanted to ensure that we never forgot the danger posed by a nation in which recruits are not yet ready to defend themselves, however willing they may be.

The misunderstanding today is understandable (though not from those who have studied history or constitutional law); the words “a well-regulated militia” all have different meanings today than they did then.

•In those days, the militia was the volunteer force, essentially, all able-bodied men from their teens to old age. Even though, today, we may use the term to identify our National Guard, the formal troops that report to their state governments (unless they get nationalized), that’s not what the term meant in the 1700s and 1800s at all!

•And in those days, we didn’t have such a thing as federal regulatory agencies, issuing permits and licenses for every imaginable business, profession, and activity. We misunderstand the term “well-regulated” today. In the 19th century, that term meant “well-rehearsed,” “well-practiced,” “familiar and expert.” The Founders were saying that the public must be accustomed to these weapons before they are ever called on to support their country’s defense. We must use the original meaning of the words to understand the full meaning of the amendment.

Modern leftists are completely mistaken in their belief that the Constitution calls for government to “regulate” firearm ownership by private citizens, or in the silly idea that a Constitution that had already provided for an army would have included an amendment to protect people’s right to serve in it.

Seen in the context of its time, the fact is undeniable: the construction of the Second Amendment was done with an eye to the lessons learned from the early days of the war; it served as a tie-in to the famous truism that “eternal vigilance is the price of liberty.” Our Framers thought this lesson important enough to cite before confirming the right itself.

Never again should an American war begin with an utterly amateur military. Never again should new recruits show up on their first day of basic training, lacking familiarity with the weapons they’ll be using on the battlefield. Never again should the government we fight be more experienced with military weapons than ourselves.

The Constitution doesn’t just protect our rights, for our own individual freedom… it protects the nation, by ensuring a population of ready soldiers-to-be.

When viewed in the context of history, it becomes clear. There is no room in the Second Amendment for waffling. There is no room for today’s leftists to carve out exceptions, because James Madison and the Founding Fathers were ahead of them.

The Framers had a warning for us, a warning that survives to this day: Guns take practice, so civilians need to possess their own private arsenals, and practice with them, so they’re ready to serve if the nation ever calls them. The Framers learned this lesson the hard way, and enshrined it in our core legal document so that it would never be forgotten.

Today’s leftists claim that the Second Amendment is for single-shot deer rifles, or for single-shot shotguns, or for target practice for sport. They claim that military uses are completely outside the protections of the Amendment, when in fact it’s plain to any honest observer that nothing could be further from the truth.

If the Second Amendment guarantees anything, it is that law-abiding citizens have the right to own and practice with AR-15s, because that’s the standard weapon issued to the American military.

The standard sidearms of the police are revolvers and semi-automatics; the standard weapons used by soldiers are high-capacity semi-automatic and automatic rifles. Yes, the weapons that the left likes to call “assault weapons.”

The left may be uncomfortable with weapons; that’s fine, they don’t have to own them.

But they have no right to deny law-abiding citizens our constitutionally-guaranteed rights, and they have even less right to lie about history, and to violate the law and their oaths of office, to claim that up is down or that north is south.

In the eighteenth century, the Second Amendment existed to ensure that private citizens could possess flintlock long-guns, so they’d be ready the day their commanding officer handed one to them.

And, so, in an age in which the M-16 is the standard issue for the military, the Second Amendment exists, first and foremost, to guarantee the right of law-abiding citizens to own and practice with them too…

John F. Di Leo is a Customs broker and international trade compliance trainer. A former county chairman of the Milwaukee County Republican Party, he has now been a recovering politician for seventeen years.

Permission is hereby granted to forward freely, provided it is uncut and the IR URL and byline are included. Follow John F. Di Leo on LinkedIn or Facebook, or on Twitter at @johnfdileo.

American citizens always better armed than the military until 1956.

Army - Matchlock musket(1500s)
Civilian - Wheel lock rifle

Army - Flintlock smooth bore musket (1776)
Civilian - Flintlock Rifle

Army - Flintlock Rifle (1803)
Civilian - Percussion cap rifle

Army - Percussion cap rifle (1855)
Civilian - breech loading cartridge rifle.

Army - Breech loading single shot rifle (1865)
Civilian - 16 shot lever action rifle

Army - 5 shot bolt action (1898)
Civilian - Lever, slide, bolt and early semi-auto and full auto rifles

Army - Semi-auto rifle (1936)
Civilian - all the above except full autos now banned.

Army - full auto rifle (1956)
Civilian - semi-auto versions only.

And if anyone tries to tell you that the 2A is locked in with flintlock rifles of 1791 then tell them that the 1st Amendment only applies to the hand cranked printing presses of 1791.

It is critical to unnderstand that progressives/liberals/socialists/statists believe the Constitution is outdated for the very reasons made clear by this article. They are absolutely opposed to arming the general public since this makes control of the masses impossible.
They categorically deny the right of revolution unless it involves the overthrow of a Constitutional republic.
Their preference in armaments is nonlethal peashooters rigidly controlled.
Armed thugs, gangs and drug dealers are acceptable since they cannot be controlled.
The very wealthy and powerful are permitted armed militia as self protection since they are very important.

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