Our Second Amendment: The Founders’ Intent

The Independent Institute ^ | December 6, 2007 | Stephen P. Halbrook

[neverdem]

Soon the U.S. Supreme Court will consider whether the District of Columbia’s bans on possession of handguns, even in the home, and on having long guns functional for self defense violate the Constitution. As the Court sees it in D.C. v. Heller, the issue is whether those bans “violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.” The federal appeals court for D.C. held that it did.

After ignoring the Amendment since its ambiguous U.S. v. Miller decision in 1939, the Court will decide whether the phrase “the right of the people” in the Second Amendment refers to the same “people” as in the First and Fourth Amendments, or only to government-selected militiamen. It will also consider whether a “right” in the Bill of Rights refers to a real liberty or is only rhetoric. Is the right to keep and bear arms on a par with the rights peaceably to assemble or against unreasonable search and seizure? Or is it void where prohibited by law?

For America’s Founders, the answer was obvious. In 1768, when Redcoats landed to occupy the town, the Boston Gazette warned of British plans “more grievous” than anything before: “the Inhabitants of this Province are to be disarmed”; martial law would be declared; and patriots would be “seized and sent to Great-Britain.” Through the periods of the Boston Massacre and the Tea Party the screws were tightened, until finally British attempts to seize colonists’ arms at Lexington and Concord in 1775 led to the shot heard ‘round the world.

Just after the American victory, General Gage, commander of the King’s troops, ordered the inhabitants of Boston to surrender their firearms, supposedly for temporary safekeeping. It is recorded that Gage confiscated “1,778 fire-arms [long guns], 634 pistols, 973 bayonets, and 38 blunderbusses.” The Continental Congress cited this act of perfidy in its Declaration of Causes of Taking Up Arms.

After Independence was won, delegates from the states in 1787 framed our Constitution. Antifederalists protested that it included no declaration of rights and would allow deprivation of rights like free speech and keeping arms. James Madison responded in The Federalist that a declaration was unnecessary, in part because of “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast with the European monarchies, where “the governments are afraid to trust the people with arms.”

A great compromise was reached: the Constitution would be ratified and then a bill of rights would be debated. When the first Congress met in 1789, Madison proposed what became the Bill of Rights. Federalist writer Tench Coxe explained the Second Amendment thus: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the 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...in their right to keep and bear their private arms.”

The Amendment reads: “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.” For almost two centuries, the understanding was that law-abiding individuals had a right to possess rifles, pistols, and shotguns. This would promote a militia of all able-bodied citizens, which, unlike a standing army, was seen as securing a free country.

The agenda to pass firearms prohibitions led to the invention of the “collective rights” view by the 1960s. Under this view, the Amendment protects only the power of states to have militias. A variation asserts that it guarantees a right to bear arms in the militia, nothing more. These attempts to deconstruct ignore that “the people” means you and me, not the states, and that no “right” exists to do anything in a military force—a militiaman does what is commanded.

In 1976, the District of Columbia banned pistols. It also required registered rifles and shotguns to be rendered non-functional when kept at home (but not at a business). D.C. residents were thereby rendered into second-class citizens—they had no Second Amendment rights and were not trusted to defend themselves in their own homes. The crime rate only continued to rise in what became the Murder Capital of the U.S.

The validity of the D.C. ban is now before the Supreme Court. Besides arguing that no one has any rights under the Second Amendment, D.C. alternatively contends that it can ban handguns as long as it does not ban all rifles and shotguns. One can imagine what the Bostonians who surrendered all of their firearms to the Crown in 1775 would have thought of such an argument. Hopefully the Justices will be mindful of the Founders’ intent and will recognize that the Second Amendment is every bit a part of the Bill of Rights as is the First.

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Stephen P. Halbrook, Ph.D., an attorney in Fairfax, Virginia and a research fellow at The Independent Institute in Oakland, CA, is author of That Every Man Be Armed (Independent Institute), and Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Praeger).

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[neverdem]

Second to none!

Parker v. Washington D.C. in HTML courtesy of zeugma.

We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”

[tired1]

never mind the gobbalty goop, just keep your powder dry.

[Inyo-Mono]

BTTT!!!!!!!!!!!!!!!!!!!!!!

[SWAMPSNIPER]

I’d like a favorable ruling, but if we don’t get one I’m not going to turn in anything. I have no problem understanding the Second Amendment at all.

[raygunfan]

the more i hear about these s.o.b. gun grabbing attempts, and they seem never ending, the more im tempted to purchase one and a CAC....

[Repeal 16-17]

If the SCOTUS screws up this case, the backlash will many times greater than the backlash after Kelo. If the Justices want to maintain the authority they current have, and if the Liberal Justices don't want a Republican victory in 2008, they know how they must rule.

[ConservaTexan]

One of my favorite Ann Coulter quotes:

"If the courts ever interpreted the Second Amendment the way they interpret the First Amendment, we'd have a right to bear nuclear arms by now." -- George magazine, 7-99

[mountainlyons]

Considering that the courts have used other than law to make some of their decisions the court will have to accept that the nation owns close to one gun per person. The gun sports are part of our heritage and daily life. A person is innocent until proved guilty. Gun control laws assume that a gun owner is guilty and restrict his rights illegally.

[Travis McGee]

Very good article.

[Defiant]

If Ginsburg and Souter are on the right side, this one is in the bag! It might be 9-0.

[atlanticist]

Superb article! I very much like Thomas Jefferson: “The beauty of the Second Amendment is that it will not be needed until they try to take it.”

Indeed, the framers’ intent was first and foremost to acknowledge the divine preexisting right of every individual to protect himself, his family, and his property, and if necessary stop an intrusive out-of-control government. America is a Nation under God, not a Nation under the State. Individuals are endowed with inalienable right by their creator; they set up a state and restrain it via the constitution. A state which overrides the limits of the constitution (via activist judges reinterpreting the constitution and departing from the framers’ intent) is potentially dangerous; so individuals need a way to hit the reset button as a last resort.

[ANGGAPO]

I think this fact wasn’t stressed enough.. At the time of the writing of the Constitution our country did not have a standing army. We had a Militia comprised of all males in a specific age group. When it was necessary to put down a riot, revolt or insurrection the Militia was called on to do the job. Because it was possible to deny ownership of a firearm to some individuals on a whim, the Second Amendment made sure that when the Militia was called to duty everyone arrived with a firearm.

[taxed2death]

“After Independence was won, delegates from the states in 1787 framed our Constitution.”

A point lost on nearly all people. Read the State Constitutions of the New England States. There is no mistake as to what the intention was.

[Ken H]

Justice Clarence Thomas on the Second Amendment:

Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries º1890, p. 746 (1833).

--J. Thomas, Printz v. U.S., 521 U.S. 898 (1997)

Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right.

--J. Thomas, Printz v. U.S., Footnote 2.

[Joe Brower]

[NonValueAdded]

one if by land, two if by sea, and three if by legislation

[TYVets]

Read the State Constitutions of the New England States.

There is no mistake as to what the intention was.

I am from Missouri and know nothing of the State Constitutions of the New England States.

Since some of the states in the northeast are the most anti-gun in the country, it would interesting to see some links or better yet a Post about what has happened in those states.

Great reply.

[Gritty]

[philman_36]

...as the military forces which must be occasionally raised to defend our country...
In this day and age of standing armies, which is not supposed to be, that weighs little.
And, IMO, if not for the standing army we would have automatic weapons in our homes and regular training at the State/county level.

[punster]

Well, you won’t see that kind of objectivity from the lying bastards at the Brady Campaign.