THE LIBERTARIAN ENTERPRISE
Number 679, July 15, 2012
"I'm not a lawyer. But I can read and I can think."

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The Third Article of the Bill of Rights Series—The Second Amendment
by Neale Osborn
[email protected]

Attribute to L. Neil Smith's The Libertarian Enterprise

This is the third article in the series. Due to circumstances beyond his control, Lee has been forced to withdraw from this series. So the part of Lee will be played by BD Styers. Remember, neither BD nor I claim to be Constitutional scholars. Our goal with this series is to define the Bill of Rights IN THE TERMS USED IN THE DAYS THEY WERE WRITTEN. As we all know, words change meanings over the years. The "Gay Nineties" were not known for homosexuality, but for good times. A "faggot" used to be a bundle of sticks for the fire. Not anymore. So it is important to know the Amendments as written in the terms of their day, not as the words of today might imply. So, as in the last article, we shall first present the Amendment, then define any words whose definitions have morphed over the years into other meanings. Finally, we will present our "common man's viewpoint" on what it means in relation to laws today. And as always, regular print is my contribution, italics is BD Styers' contribution.

So first, we present the amendment in full:

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.

There are several words whose meanings have changed over the ensuing 220+ years since initially presented.

Well Regulated—The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd Amendment, it was precisely to render the government powerless to do so that the founders wrote it. (source ) (another source ) Both these sources cite definitions of the day, including, in the second link, a 1789 North Carolina law AND the words of Alexander Hamilton in Federalist Papers #29. So this term does not mean "controlled by laws and licenses", but rather well-trained and in good order.
'Something that was well-regulated was calibrated correctly'

'Firearms: The adjustment of a multi-barrel firearm (e.g., a double-barreled shotgun) so that the barrels shoot to the same point-of-aim. If such a gun (a double-barreled shotgun or a three barreled "drilling") fails to shoot properly, it is considered to be "out of regulation" and needs to be "re-regulated".'

Militia—

1. An army composed of ordinary citizens rather than professional soldiers.
2. A military force that is not part of a regular army and is subject to call for service in an emergency.
3. The whole body of physically fit civilians eligible by law for military service.

( source )

The organized militia created by the Militia Act of 1903, which split from the 1792 Uniform Militia forces, and consist of State militia forces, notably theNational Guard and the Naval Militia.^[2] The National Guard however, is not to be confused with the National Guard of the United States, which is a federally recognized reserve military force, although the two are linked.

( another source )

The People—Numerous Supreme Court decisions have stated that the term "The People" refers to an indivudual right, as opposed to the term "The State" or "The States", which refers to federal or state government. There are several definitions of the term in today's dictionaries, such as:

1. persons indefinitely or collectively; persons in general: to find it easy to talk to people; What will people think?
2. persons, whether men, women, or children, considered as numerable individuals forming a group: Twenty people volunteered to help.
3. human beings, as distinguished from animals or other beings.
4. the entire body of persons who constitute a community, tribe, nation, or other group by virtue of a common culture, history, religion, or the like: the people of Australia; the Jewish people.
5. the persons of any particular group, company, or number (sometimes used in combination): the people of a parish; educated people; salespeople.

None of these accurately fit the term as used in the Constitution, so we have to go with the Supreme Court definitions. And as recently as Heller v the District of Columbia, they have ruled that "The People" denotes an individual right guaranteed by the Constitution.

Keep—Hasn't changed much, but what the heck!

"transitive and intransitive verb possess something: to hold or maintain something in your possession"

( source )

Bear—(NO, not as in Teddy Bear)

1-To hold up; support.

2-To carry from one place to another; transport.

3-To carry in the mind; harbor: bear a grudge.

4-To transmit at large; relate: bearing glad tidings.

5-To have as a visible characteristic: bore a scar on the left arm.
6-To have as a quality; exhibit: "A thousand different shapes it bears" (Abraham Cowley)

( source )

As you can see from this partial listing, there are lots of definitions of "bear". #2 fits the sentence structure. And from another source, with multiple definitions,

"to have and use; exercise: to bear authority; to bear sway"

And finally,

Arms-

ARMS. Any thing that a man wears for his defence, or takes in his hands, or uses in his anger, to cast at, or strike at another. Co. Litt. 161 b, 162 a; Crompt. Just. P. 65; Cunn. Dict. h.t.

(source) or

1. A weapon, especially a firearm: troops bearing arms; ICBMs, bombs, and other nuclear arms.

(Author's note—even at the time of the Constitution's writing, there was a differentiation between "arms" (ANY weapon) and "small arms" (one-man portable weapons such as rifles, pistols, muskets, swords and knives). Therefore, the authors of this Amendment meant ANY AND ALL weapons. end note)

And last but not least, despite tha lack of change in the definition, some don't remember what it means,

Infringed-

1. to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.

( source )

So, what does this mean? It is simple. A well trained group of citizens need to be available to aid in defending the country. Since these people are supposed to bring their own arms to any situation where they need to defend their country, the right of each and every individual citizen to own and carry weapons of any type can not be violated. This means that ALL firearms laws that limit the owning, carrying, number, styles, or actions of ANY firearm for any reason are a direct and deliberate violation of the 2nd Amendment. EVERY state signed on to this when they joined the Union. States may not limit rights any more than the federal government can. ALL firearms laws, whether they are requiring a license to own or carry, or laws limiting styles (banning fully automatic weapons) are un-Constitutional.

In the 'common man's words', the 2nd Amendment has a more important fundamental meaning. It is the sole right that must be maintained by the people in order to support all other rights derived from the constitution. Without the right to keep and bear arms, all other rights are insignificant.

It is well known that government derives its power from the people, those who by consent choose to be governed. An appropriate balance may be maintained between laws sufficient to create civility, while sufficient checks on government power keep it within appropriate boundaries. The responsible exercise of the right to keep and bear arms, particularly in view of circumstances where a governing force infringes on rights in general, is an appropriate tool for maintaining such balance. Appropriate armament allows the people to overcome inappropriate use of force by the government if needed.

It is this right that people must express readily particularly in the face of a governing force which would attempt to disparage it. As we know, government derives its power from its source, the people. As long as the people support the government, this power is maintained at sufficient levels to keep us civilized toward one another without too much unnecessary regulation, while sufficient governance of the government keeps the government in its appropriate boundaries. When the government, or rather the people running the government, overstep the authority provided by the Constitution, the resultant use of force by government indicates its source of power, the people, suffers a shortage.

I have been accused of being opinionated, having a preference for opinion over source, or opinion over case law. In this instance, case law is necessary to provide the particular information needed to support the call for a particular focus on the 2nd amendment in that without this amendment, there is no backstop for the people to resort in the case where government oversteps its boundaries of governing by the people and for the people.

All case law sources are from FindLaw

FindLaw, a Thomson Reuters business, is the world's leading provider of online legal information and Internet marketing solutions for law firms. FindLaw's roots go back to 1995, when two attorneys compiled a list of Internet resources for a group of law librarians in northern California. The response to the material was so positive they decided to post the information on the Internet.

Among challenges to the 2nd Amendment are the assertion that gun ownership is tied directly to the maintenance of a 'well-regulated militia'. The assertion by Washington, D.C. legislators led to an outright ban on private ownership of guns in 2008. In D.C. it was made unlawful to carry an unregistered firearm, and it prohibited the registration of handguns, making it unlawful to own a handgun except by special permit provided by police. It also included all legally held firearms to be rendered non-functional or bound by trigger lock, making the weapons useless for personal defense. source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=07-290

In 2010, a similar case involving local law enforcement in the suburbs of Chicago resulted from the finding in the D.C. case. Chicago and outlying towns in the suburbs of the city had laws effectively banning the private ownership of handguns. The subtle variation in the case is that the 2nd Amendment somehow did not apply to State laws, meaning the States could in fact implement laws banning the possession of firearms. This case includes the 14th Amendment which effectively states that what applies to the Federal government concerning constitutional laws also applies to the States. States cannot impose laws that violate the Constitution. To make a long story short, it was decided that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. source: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-1521

When peaceful citizens are armed, they at least have a chance against armed criminals. Does the Bill of Rights grant rights to We the People? If not, why call it the Bill of Rights? I haven't figured that one out yet. It has a lot to do with the Federalist/Anti-Federalist debate on whether or not to adopt the Constitution without outlining some specific rights of the people. The fact is, the rights already exist. The Constitution and subsequent Bill of Rights simply limit the Federal and State governments ability to interfere with the exercising of the rights.

The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.

source:http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=542

Understanding that all rights are first to be considered lawful before being considered right is paramount to understanding the need for a strong Constitution. The fact that so many new, unsubstantial laws and amendments have been implemented indicates an ignorance of the first premise, that all rights must first be lawful before considered as a right. The Civil Rights Acts are such instances. One must ask why we need laws specifically to protect against discrimination when the act of murder, restricting the pursuit of liberty, infringement on the rights of people to engage in peaceful activity is already illegal. These laws come into being as a direct result of ignorance and the desire for dependence on a government institution.

Excerpted from Federalist 46: http://www.foundingfathers.info/federalistpapers/fed46.htm

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.
...
That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.
...
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

James Madison, AKA Publius, prophetically outlined the likelihood of a usurpation of State Power and Peoples' Rights through the inappropriate assumption of control of the then proposed federal government. In the above passage, he accentuates the need of a combination of strong local governments, and organizations, and a well trained, armed population. He points out that arms alone may indeed not be enough, that local governments, which dare I say it? depend extensively on the exercise of the First Amendment right of Free speech and association that act to coalesce national will and direct national force to oppose such illegal and unjust enterprise.

And so, we conclude this section with a few quotes from the founding fathers and other statesmen:

"To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."—Richard Henry Lee

"Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example."—Oliver Wendell Holmes Jr.

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."—Ben Franklin

Previous articles in this series:

A Brief History of the Bill of Rights

Article 2 of the Bill of Rights Series. "The First Amendment"