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The Three Pillars of the Second Amendment
by Terence James Mason
[email protected]

Attribute to L. Neil Smith's The Libertarian Enterprise

"The very atmosphere of firearms anywhere and everywhere restrains evil interference—they deserve a place of honor with all that's good."
—attributed to George Washington

The recent rash of mass shootings in so-called "gun free zones" such as theaters, malls, and schools, culminating in the tragedy at Newtown, Connecticut, has led to mass calls for tighter restrictions on firearms sales, while ignoring the inconvenient (for the gun control lobby) facts that the presence of armed civilians stops such events very early in their progression—and that societies that have disarmed have much higher rates of crime, and no appreciable reduction in crimes of mass violence, than those where citizens are ready and trained to defend themselves.

Our hearts go out to the victims of the Tucson Mall (Gabby Giffords), Aurora Theater, and Sandy Hook School shootings, among others. But our minds recognize the brutal logic that madmen will always be with us, and that the only way to defend ourselves is to actually do so—by, as the saying goes, bringing a gun to the gunfight. Firearms are not some magical genie that can be stuffed back into a lamp at the end of the day; anyone with access to a modest machine shop and a modicum of skill can reproduce a firearm and cartridge of any given caliber, produce the chemicals necessary to power the projectile, and cast projectiles out of lead or other heavy metal. And, with the increasing resilience of modern materials, the day may come when metals are not the only material of choice.

In the end, people of good will must always turn to the Second Amendment, as the Framers and Founders intended when writing the Bill of Rights—and even Alexander Hamilton, who did not desire a federal Bill of Rights, acknowledged in the Federalist Papers. Ultimately, the Second Amendment rests on three pillars—Defense of Self, Defense of the Body Public, and Preservation of Liberty. This essay explores those pillars.

Defense of Self

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.
—Cesare Beccaria, as quoted by Thomas Jefferson's Commonplace book

...A government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen...
—Warren v. District of Columbia, 444 A.2d 1 (D.C. App.181)

In a polity, each citizen is to possess his own arms, which are not supplied or owned by the state.
—Aristotle

An armed society is a polite society.
—Robert A. Heinlein

To make inexpensive guns impossible to get is to say that you're putting a money test on getting a gun. It's racism in its worst form.
—Roy Innis, president of the Congress of Racial Equality (CORE), 1988

I don't like the idea that the police department seems bent on keeping a pool of unarmed victims available for the predations of the criminal class.
—David Mohler, 1989, on being denied a carry permit in NYC

The Natural Right to Life as acknowledged by the Founders is meaningless without the Right to Self-Defense. For this reason, the Second Amendment enshrines the individual Right to Bear Arms as a natural right, not subject to regulation. If you give up that right, your very life exists at the pleasure of—and presumed protection by—whatever authority to whom you abdicate the right of self defense. At best, your life is subject to their negligence, inefficiency, and/or inadequacy—"when seconds count, the police are only minutes away."¹ If you want examples of the worst extremes, I suggest you study the histories of Hitler, Stalin, and Mao, among others. In between, you are effectively a slave to whomever you abdicate your right of self-defense—the same argument, and for the same reasons, against relying on federally-provided health care. And a "gun free zone" of any kind means that (a) whoever declared that zone places their comfort level with guns above your right to life; (b) whoever declared that zone "doesn't trust you unless you are rendered harmless;"² and (3) whoever declared that zone has prepared a baited hunting ground for serial killers.

"...The right of the people to keep and bear arms shall not be infringed," as stated in the Constitution and as ratified by the States, is an absolute. Acknowledging that self-defense is a natural right of the people means that it is not subject to limitation either by the federal government or by the states and municipalities, and virtually all such laws, both federal and state, are thus unconstitutional on their face.³ (Not all are necessarily Anti-constitutional; more on that in a bit.) The exception is the denial of the right to bear arms to convicted felons, or to individuals judged so mentally unstable as to be a danger to others. These cases can only be applied on an individual basis, not on any collective basis, and must require a specific judicial determination that the individual is a danger to others—because even convicted felons and the truly troubled still have a right to life, unless subject to capital punishment.

Guns are not the problem; people who do violence are the problem. The same day as the Newtown mass shooting, there was a report of the same number of school children killed in China by a man with a machete. Which illustrates another point, well known to those of us who defend the Second Amendment: guns are the great equalizer, necessary to civilization. In a confrontation, an armed person who knows how to use his or her gun to defend him- or herself is on par with any adversary.⁴ But take away guns, and the person who is better with a knife or sword dominates; take away bladed weapons, and only sheer brute physical force dominates. Not to mention, of course, that ultimately those who abide by gun restrictions become the prey of those willing to ignore them—as every victim of the "protection racket" learned after the Sullivan Laws gave free reign to the Mafia in New York. These liberal fantasies of a world without guns (except, of course, to defend liberal politicians) ignore the reality that they are condemning the rest of society to enslavement by those with the right "pull" to keep guns, and those who can physically dominate the weaker disarmed person (including most women and children). Being "from the government" does not automatically ensure that a person is good-willed, and it is well known that criminals are as capable of buying influence (in fact, often more so, due to their more varied "wares") as honest citizens.

I have heard arguments that "putting more guns on the streets can't make things safer." I have also heard that some level of gun regulation is necessary for public safety in the aftermath of Newtown. Well, at one level, this is not about making things safer; this is about the natural right of the law-abiding and responsible citizen to defend himself or herself. However, both statistical assessments and anecdotal stories have demonstrated that firearms in the hands of responsible citizens do, in fact, reduce the risk of gun violence. It is also true that the casualties in mass shooting situations are dramatically reduced when the shooter is confronted by active, armed resistance.

The option expressed by Wayne LaPierre, president of the National Rifle Association, in his press conference following the Newtown, Connecticut mass shooting, recommending the use of off-duty or retired policemen and adjunct guards at schools, raised intense indignation among the Anti-Constitutional Mass Media. There is certainly nothing wrong with empowering and funding such people to perform ancillary guard duties, provided that it doesn’t grow into an Armed School Guard Administration along the lines of the Transportation Security Administration. But this suggestion implicitly supports keeping the teachers and other responsible adults (and in some cases, particularly in high school and college, responsible students) from exercising their own individual rights of self defense. As such, it is a borderline liberal policy and unworthy of LaPierre and the NRA.⁵ The moves by Texas and Utah (of which I know as of this writing) to parallel Israel by putting trained, armed teachers in the schools (perhaps using low-penetration ammunition) is the Constitutionally-appropriate way to go, and counters the, "Who will pay for it?" argument that the Anti-Constitutional Mass Media continually raises against LaPierre's recommendation.⁶

Defense of the Body Public

"I ask sir, what is the militia? It is the whole people except for a few politicians."
—George Mason (father of the Bill of Rights and The Virginia Declaration of Rights)

Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
—"M.T. Cicero", in a newspaper letter of 1788 touching the "militia" referred to in the Second Amendment to the Constitution.

"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms."
—Senator Richard Henry Lee, 1788, on "militia" in the 2nd Amendment

In recent years it has been suggested that the Second Amendment protects the "collective" right of states to maintain militias, while it does not protect the right of "the people" to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and the Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.
—Stephen P. Halbrook, "That Every Man Be Armed", 1984

Now we get to that pesky "well-regulated militia" part.

Mr. Halbrook gets right to the point in his comment: nowhere in the writings of the founders (or any other author I am aware of before the twentieth century) is there a suggestion that the militia is anybody but the whole people, and consequently that the right to bear arms is, and of necessity is, an individual right. Any reasonable history of the Second Amendment—for this purpose, the one on Wikipedia⁷ will suffice—notes that the only qualification in the debate of the Second Amendment was to avoid a positive requirement to bear arms in the militia. Further, all of the early commentary accepted that the right to bear arms was a right of the people as a whole, and that the militia was composed of the same. Further, it was evident that the Framers intended that the People were to have access to the same arms as the Army.

This was in fact summarized by Alexander Hamilton in Federalist 29 (emphasis added):

Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped ...The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the People while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

Admittedly by the standards of the time, the militia was constrained to white males and/or free men of the ages between 18 and 45. Since the institution of slavery has thankfully been ended, and since women have been accorded equal rights in most things, the liberal and democratic approach should be to welcome persons of all races and genders⁸ into the ranks of the militia (as is presently done in the military, the national guard, and the various state defense forces), and thus eliminate any pretense that "the regulation of the militia" denies the right to bear arms to anybody. Of course, such a distinction, and such a restriction, is already contrary to the clause, "the right of the people to keep and bear arms shall not be infringed."

The Wikipedia article also attempts to make the point that the reliance on militias has had a spotty history due to poor participation and poor training. Conversely, reliance on local militias as opposed to a standing army continued to be the norm rather than the exception until after the Civil War. In any event, that is irrelevant to the core of the argument—the right to bear arms is an individual right, and the people have a duty to assist in the defense of their communities, their states, and their country in extremis, and to prepare to do so by keeping and training in the use of weaponry and maintaining their own firearms and ammunition. This system has certainly served the Swiss quite well, and in conjunction with the universal maintenance and use of firearms, they have one of the lowest rates of crime and of firearm violence in the world. That certainly correlates with all studies in the United States which show that crime and violence goes down when the potential victims of crime have the ability to defend themselves.

Preservation of Liberty

And what country can preserve its liberties, if its rulers are not warned from time to time that his people preserve the spirit of resistance? Let them take arms.
—Thomas Jefferson, letter to Col. William S. Smith, 1787

"Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined."
—Patrick Henry, speech of June 5 1788

"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

"Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest."
—Mahatma Gandhi

"Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom."
—John F. Kennedy

Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. [...] the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.
—Hubert H. Humphrey, 1960

Just as the Declaration of Independence enshrines the natural rights of Life, Liberty, and the Pursuit of Happiness (which means, among other things, the right to acquire, own, and trade property, the right to work at will at a freely chosen trade or profession, the right to associate with persons of one's own choosing, and the right to pursue such other activities and entertainment as cause to harm or damage to others), the Founders maintained that individuals had the right to use firearms to preserve those liberties, even against the government.

To quote James Madison from Federalist 46 (emphasis added):

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. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. 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...

The legal theory is very clear here—or at least it was clear when I was taught government in rural Kentucky forty years or so ago (not long after I was taught gun safety in class)⁹. Under the Constitution, the people are collectively (not individually) sovereign, and the government is our hired representative to attend to the collective functions of society. The Framers realized that the collective power of government can be significant, and left the citizens the explicit ability to fire those hired representatives—at the ballot box where possible, and by other means where necessary. The citizens militia is the ultimate and fundamental expression of that will. It is important to remember that the British attempts to confiscate the Colonist's artillery and powder, the direct cause of the Battles of Lexington and Concord, was the spark which ignited the American Revolution, a recent history on the minds of the Founders and Framers when the Constitution was being written.

Even such 1960's liberal icons as President John Kennedy and Vice President Hubert Humphrey realized this fundamental fact and applauded it. Anyone seeking to outlaw firearms may claim to have your best interest at heart—progressives are, after all, capable of believing the most fantastic lies—but one can never assure that every person left holding guns, when all is said and done, share that belief. And if even one such person is a criminal, you cannot justify leaving the rest of society as a victim of your "protected" lawbreaker. Even the most benign of governments can harbor lawbreakers.

Drawing the Lines¹⁰

That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms...
—Samuel Adams, in "Phila. Independent Gazetteer", August 20, 1789

"To disarm the people... was the best and most effectual way to enslave them."
—George Mason, speech of June 14, 1788

"The great object is, that every man be armed. [...] Every one who is able may have a gun."
—Patrick Henry, speech of June 14 1788

The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
—Albert Gallatin, Oct 7 1789

No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
—16 Am. Jur. Sec. 177 late 2d, Sec 256

Particularly since the Newtown shootings with the new call for federal gun control laws and a reinstatement of some version of the so-called "Assault Weapons Ban," we have reached a tipping point as a society. This was best illustrated as I stood in a busy gun shop this past (as I write this) Saturday afternoon, and overheard a young couple, apparently in their mid-twenties, quietly discussing the possible need to defend themselves against their own government.

Let me emphasize that I am not talking about rebellion or promoting rebellion. I am talking about preserving and protecting the Constitution of the United States from enemies domestic and foreign, as the President, the Vice President, the Congress, and the Military are already sworn to do. My desire and intent is to do so by working to eliminate the loopholes that generations of politicians have manufactured in the common understanding of the Constitution and the Bill of Rights (as expressed in my essay No Loopholes, available in e-book on Kindle, Nook, and other formats). But a storm seems to be approaching, and millions of people fear it—just look at the lines in the aforementioned gun store and the other stores and gun shows I have visited and had reports on recently.

So if it becomes necessary, where do we draw the line?

Earlier, I noted that the rigorous interpretation of the Second Amendment makes unconstitutional all domestic gun laws—federal, state, and local—which affect the ability of law-abiding citizens to keep and bear arms for self-defense, as is any law that prevents the average citizen from arming himself to the same (or better) standard than the military. To achieve the defense of the body public, the Framers intended that every citizen should be so armed; there is no Constitutional justification for denying the right of any law abiding citizen to walk into any defense supplier or arms manufacturer and purchase any items in the United States arsenal—handguns, semi-automatic or fully automatic rifles, artillery, tanks, anti-aircraft missiles, fighter jets; anything. Admittedly, few individuals could purchase anything as large—or expensive—as a fifty-caliber machine gun, and fewer still the other items on this list—but the Second Amendment provides all of the legal justification necessary to permit such purchases. Even Hamilton, the Framer who most resisted the idea of a Bill of Rights, noted that the militia should be "little, if any, inferior in discipline and the use of arms" (quoted above) compared to the regular army, which is only possible if the people are permitted to purchase and use the same weapons as the military. This was clearly the Framer's intent.

But an unconstitutional law is not necessarily Anti-Constitutional; Holmes's famous example of "falsely shouting fire in a crowded theater" comes to mind. Freedom of speech does give pundits the right to spout off at will, but it doesn't make the actions they recommend correct or even legal; in particular, when it comes to the clamor which goes past a reinstatement of the "Assault Weapons Ban" (their words, not mine) to outright confiscation of firearms, as one pundit has demanded.

For example, it is possible to argue that the people do not need fully automatic weapons for self-defense, and people today largely accept that registration and the payment of related fees is an appropriate extra step to permit the average citizen to purchase a fully automatic weapon. We have accepted the National Firearms Act of 1934 as a reasonable limit on the unrestricted right to keep and bear arms, for all that it is unconstitutional. Similarly, a reinstated "assault weapons ban" on the pattern of the 1994 bill—some limits on weapons purchases and on magazine sizes, an increased emphasis on screening criminals and the mentally ill before selling weapons, but prior ownership grandfathered in—while a purely cosmetic feel-good measure, could be lived with; we've done so before, and we can overturn or sunset the legislation in a few years. Acknowledging this prospect is not the same as agreeing to it, but our vocal and intense opposition should be channeled through conventional political channels. A renewal of the useless 1994 Assault Weapons Ban is not inevitable, but it could well be the best-case scenario in the coming months.

But a sharp line comes when existing weapons are not grandfathered in and any form of confiscation begins. Another comes when progressive voices try to argue that gun ownership is by itself a mental illness—I've seen a lot of panicky emails suggesting that is already started, usually involving war veterans with post-traumatic stress disorder, but I haven't personally seen any evidence that it's happening.

The People comprise the militia, just as the People ("We, the People...") are collectively sovereign. Just as the Founders saw British disarmament of the colonists as an act of war, they would see any disarming of the people as an act of war against the Constitution and People of the United States. If done by the government or by representatives of the government—whether through attempted legislation or through executive fiat—then it becomes, under Article 3, Section 3 of the Constitution, an act of treason.¹¹ Such a law is self-evidently illegal, as a direct violation of the 2nd Amendment, as an arguable violation (depending on circumstances) of the 4th, 5th, and 9th Amendments, as an ex post facto law criminalizing the past purchase and/or continuing possession of a legally purchased firearm; and, as an act of War against the United States. Similarly, voluntary compliance with any mandatory disarmament order is the moral equivalent of desertion under fire. Any attempt to overturn the Second Amendment, through legislative action, executive order, ratification of the UN Small Arms Treaty or any other treaty, or even the passage and ratification of a Constitutional Amendment, is by definition Treason; this is the ultimate gift that the Framers have left the People. Even though the people taking the weapons are not likely to acknowledge that legal angle, and everyone else is likely to follow Samuel Adam's dicta and "forget you were our countrymen," you would know. Note that I am not accusing anybody of treason at this time (or for this reason), because no one has yet performed the proscribed actions. And while I do not suggest any specific response if they do occur, I cannot recommend that any person become accessory to treason, either by disarming their fellow citizens or by submitting to an order to disarm.

As this article was in draft I reviewed a summary of Senator Feinstein's proposed bill ( http://www.feinstein.senate.gov/public/index.cfm/assault-weapons accessed 27DEC2012), which requires registration and fingerprinting of current gun owners (although it supposedly grandfathers current guns in private possession). If passed, this would be an unconstitutional ex post facto law which effectively criminalizes an activity previously legal. If not voluntary, compliance would also not be possible without violations of the 4th, and 5th, and 9th Amendments, so the bill is clearly Anti-Constitutional independently of the gun control aspect. I am informed that Senator Feinstein has relied on the Urban Institute, which is characterized as a "front group" for anti-American UN programs such as Agenda 21. At a minimum, serious consideration of this proposal pushes the line as far as it can go without crossing it, and freedom-lovers should work diligently to prevent its passage or even serious consideration.

It is my hope that saner minds and sound constitutional principles will prevail, but I honestly fear that the Anti-Constitutionalists don't comprehend that by calling for confiscation of arms they are preaching treason—while I am reasonably certain that most Constitutionalists understand that, even if they haven't thought about it in those terms. I don't want the Anti-Constitutionalists to open the can of worms that is currently being discussed, not least because I think they have no concept of the consequences of doing so. But I am confident that, when all is said and done, the Constitution will triumph. Ultimately, American Constitutional government rests on a foundation of the natural rights of the people, not of the power of the federal government. And because the Framers knew how republics have historically died—through an overdose of rampant Democracy leading to failure and tyranny—and provided for the first government in the history of the world capable of correcting that.

The author is indebted to the following "one stop shops" for some of the quotes reproduced in this essay (accessed 23 December 2012): http://catb.org/~esr/guns/quotes.html and http://www.buckeyefirearms.org/gun-quotations-founding-fathers. The author is also grateful for the well-rounded essays, complimentary to this one, by L. Neil Smith (http://www.ncc-1776.org/tle2012/tle701-20121216-02.html) and Larry Correia (http://larrycorreia.wordpress.com/2012/12/20/an-opinion-on-gun-control/), and other breaking news and commentary, in the aftermath of the Newtown mass shooting. I'd like to thank the people who reviewed this in draft and made it a much better essay—you know who you are.

Terence James Mason is the author of No Loopholes: Getting Back to Basics, an assessment of the meaning of the Bill of Rights and a suggestion of additional Constitutional Amendments to restore the Framer's vision for the Republic. No Loopholes is electronically published by Twilight Times Books (http://twilighttimesbooks.com) in Kindle, Nook, and other popular electronic formats. Mason tweets on the need for #NoLoopholes @OneAmericanVoice.

Notes