The Second Amendment

The Sierra Times ^ | 18 February 2003 | Robert Greenslade

[45Auto]

The American people have been conditioned to believe that the source of their individual rights are the first ten amendments to the Constitution for the United States, commonly known as the Bill of Rights. The wording of one of these amendments, the Second Amendment, has sparked a debate concerning the right to keep and bear arms. Groups and individuals opposed to the private ownership of firearms claim the American people do not have the "constitutional right" to right to keep and bear arms because the purpose of the Amendment was to grant the several States the "collective right" to maintain armed militias. Those on the other side of the controversy have rejected this interpretation and assert that the American people have a "constitutional right" to keep and bear arms because the right enumerated in the Amendment is an individual right. The purpose of this article is to show that both assertions are wrong because the Amendment did not create any "constitutional right" to keep and bear arms, "collective" or "individual."

The Federal [Constitutional] Convention; No Bill of Rights

During the debates in the Federal Convention, there was only one motion to add a bill of rights to the proposed constitution. On September 12, 1787, five days before the Convention adjourned, George Mason of Virginia proposed that the document be prefaced with a bill of rights. This proposal was overwhelmingly rejected. When the Constitution was signed on September 17, 1787, it did not contain a bill of rights.

Federalists and Anti-Federalists Debate the Need for a Bill of Rights

After the close of the Federal Convention, the proposed constitution was submitted to the several States for ratification. During this process there was a heated debate in the press between those who supported the new constitution, the Federalists, and those opposed, the Anti-Federalists. Part of the debate focused on the lack of a bill of rights. The Federalists argued that a bill of rights was unnecessary. They based their argument on the principle of limited government. The proposed constitution, if adopted, would create a federal government of limited enumerated powers. Under this system of government, every power not granted would be denied irrespective of whether the document contained a bill of rights. Since the federal government was not being granted any power to legislate concerning individual rights, including the right to keep and bear arms, the Federalists considered a bill of rights superfluous and even dangerous.

The Anti-Federalists, on the other hand, feared that the federal government would attempt to usurp this system of government and exercise powers not granted. They asserted that a formal declaration was essential to secure the individual rights of the people.

On October 27, 1787, the second of five Anti-Federalist essays appeared in the Boston American Herald. Written under the pseudonym John Dewitt, the author expressed concern for the lack of a bill of rights:

"[T]he want of a Bill of Rights to accompany this proposed system, is a solid objection against it... "

Three weeks earlier in a speech at Independence Hall, James Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from it:

"It will be proper...to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate [state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve;...if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved."

" This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press...what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent."

As explained by Wilson, there was no need for a bill of rights because the system of limited government established by the Constitution, standing alone, was sufficient to secure the rights of the people and prevent the federal government from exercising powers not granted.

This principle was made crystal clear by John Jay in the New York Ratifying Convention when he stated that individual rights were not affected by the absence of a bill of rights because "[s]ilence and blank paper neither grant nor take away anything."

The Anti-Federalists Prevail

In the end, the Anti-Federalists prevailed in the debate over the addition of a so-called bill of rights. By September of 1789, Congress had reduced 210 separate amendments proposed by the States to 12. The amendments were inserted into a congressional resolution and submitted to the States for consideration. Of these, numbers 2-12 were adopted and became the Bill of Rights.

Some of the misconceptions surrounding the intent of the Second Amendment can be traced to little known fact concerning the resolution prepared by Congress. When the resolution was submitted to the States for consideration, it contained a preamble declaring the purpose of the proposed amendments. The original preamble contained three paragraphs, but most modern editions of the Bill of Rights only include the third paragraph. The complete preamble, which is still part of the Bill of Rights, is printed below as it appeared in the 1789 resolution:

Congress of the United States, begun and held at the City of New York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.t

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Analyzing the Preamble

As stated in the preamble, the purpose of the proposed amendments was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being recommended. The amendments, if adopted, would not grant the States or the people any so-called "constitutional rights." The sole purpose of the amendments was to place additional restraints or limitations on the powers of the federal government.

Understanding the Bill of Rights

The Bill of Rights might be easier to understand if it had been titled the Bill of Prohibitions. It enumerates rights that exist independent of the Constitution and denies the federal government any power to infringe those rights. Any right not enumerated in the first 8 amendments was placed beyond the purview of federal authority by the Ninth Amendment. Every power not granted to the federal government was reserved to the States or the people by the Tenth Amendment. The Bill of Rights is simply an enumerated expansion of the principle of limited government in a declaratory form.

The Second Amendment

When antigun organizations, like the Brady Campaign, make the claim that Second Amendment did not create an individual right to keep and bear arms, firearms owners go ballistic and assert that they have a "constitutional right" or "Second Amendment right" to possess firearms. Since the purpose of the Bill of Rights was to prevent the federal government from "misconstruing or abusing its powers," the Amendment could not have created any "constitutional right" to keep and bear arms; collective or individual.

From a federal standpoint, the Second Amendment is a secondary issue because the federal government was never granted the general authority to regulate the individual right to keep and bear arms in the first place. The right exists independent of the Constitution or the Second Amendment.

If the Second Amendment had never been adopted or was removed from the Constitution, the American people, from a federal standpoint, would still have the individual right to possess firearms because the Amendment is not the source of the right.

Firearms owners have failed to grasp these principles. They continue to erroneously assert that they have a constitutional or Second Amendment right to keep and bear arms because the right is enumerated in an amendment to the Constitution. By neglecting the principle of limited government and betting the ranch on a favorable interpretation of the Second Amendment, firearms owners are not only misrepresenting the intent of the Bill of Rights, but are falling into the quick sand scenario outlined above by James Wilson.

The firearms community needs to return to the basics. The Constitution established a federal government of limited enumerated powers. Under this system of government, every power not granted is denied irrespective of the Bill of Rights. When the Constitution was written and adopted, the American people had the individual right to possess firearms. Since this right was not surrendered to the federal government by a direct grant of power in the Constitution, the people retained the right independent of the Second Amendment or any interpretation of the Amendment.

Note to reader: Every federal domestic gun control law has been passed under the Commerce Clause. To substantiate this fact, go to the web-page of Congress- and type the words "interstate commerce" in the search engine to review the new gun control laws pending before Congress. Do the same for any prior session of Congress to review past legislation.

[45Auto]

The right to keep and bear arms, like every other right expressed in the Bill of Rights pre-existed the drafting of the US Constitution. Therefore, every gun law on the books is unconstitutional.There is no real Constitutional authority to regulate the ownership of firearms.

[Wolfie]

Well, then, have at it. Let us know how it turns out.

[uncbob]

All you have to do is point out the 2nd Amendmentd does NOT SAY The people SHALL have the right to keep and bear arms

It says that right SHALL NOT BE INFRINGED

That means the right ALREADY exists independent of the federal government approval

[Maelstrom]

Finally

BANG BANG BANG

Bangworthy bump

[Ches]

Well written in easy to understand terms. I know we win the Constitutional argument with reasonable men. As I see it, the problem is that we are not dealing with reasonable men. We are dealing with deceitful, dishonest, power hungry leftists leading the intellectually bereft to the Promised Land.

Pray for the best and prepare for the worst.

[RogueIsland]

If the Second Amendment had never been adopted or was removed from the Constitution, the American people, from a federal standpoint, would still have the individual right to possess firearms because the Amendment is not the source of the right.

This bears repeating. Repeatedly.

[wita]

leading the intellectually bereft to the promised land...where they will find a wasteland of their own manufacture filled with the manure of life whom they would fain associate with if it were not for the common cause. Unfortunately those principled opponenents over whom they sought power, will be absent their promised land.