L. Neil Smith's

Number 13, September 1, 1996

The Great Object ...

By Joseph William Reichert

Special to The Libertarian Enterprise

         The detractors of Liberty are fond of repeating a novel and very peculiar interpretation of the Second Amendment to the U.S. Constitution, arguing that it guarantees to the states the right to maintain their own militias, but does not afford individuals any right to keep arms. It is perfectly natural they they adopt such an interpretation, because it is the only interpretation consistent with the result they desire, which is the complete disarmament of all of us. There are many reasons advanced by them for trying to disarm the public, but no matter how varied their stated reasons may be, all of their multifarious objects boil down to one grand motive, namely, that we should have our weapons taken from us for our own good. If we object that we do not think it in our interest to be disarmed, we are eventually told that, as individuals, we are not competent to know what is in our own best interest, but that others, (who also happen to be mere individuals, but individuals with lofty titles) are better prepared to make this decision for us.
         My own tolerance is broad enough that I think they should be allowed to lie about the Constitution, if they so desire. They are also free to confuse themselves, if they wish. But they ought not be permitted to confuse us on any point; not concerning the meaning of the Second Amendment, not concerning the historical antecedents of that document, and certainly not concerning our moral obligation (as opposed to our legal obligation), to obey laws which seek to disarm us. We should never permit their befuddlement become our rules.
         I always take it as a given that any document, including the Constitution, has an original, objective meaning, and that the key to that meaning is what its plain language says. I am joined in this view by the courts of this country, both federal and state, which are virtuallly unanimous in holding that any writing is to be given the meaning revealed by a literal reading of its plain language, and that the various mechanisms of legal interpretation are to be employed only when the document is found to be ambiguous. Unless ambiguity is obvious from the face of the document itself, interpretation is not needed. There is nothing ambiguous about the Second Amendment. What is ambiguous, in the minds of its statist "interpreters", is how best to bend it, to make their goal appear consistent with the Constitution. In the end, they cannot change its meaning, but they hope they can convince us that it says what it does not say.
         Essential to their argument is their position that the term "Militia" referred to in the Second Amendment must be read as "the State's militia", or, more properly, "the Militia under the control of the State". However, the term used is merely "A well regulated Militia". The contention that it means a militia controlled by the State is only sustainable if the contender can first summon into being the word "State", and by some supreme effort of the imagination cause it to appear in front of the word "Militia".
         Moreover, it is not any State that is referred to in the Second Amendment, but "a free State". The Militia contemplated by the Constitution exists to maintain the security of a free State. The adjective "free" was included to modify the term "State", and from this only one conclusion is possible: that the framers of the Constitution intended that only free States be protected, and that the Militia not be regarded simply as an instrument of power at the disposal of any State that happens to come into being. Therefore, we are forced to conclude that the Militia is not called into being as an abject instrument of the State, but must exist as a check upon it.
         Furthermore, the Second Amendment does not speak of the right of the State to keep itself armed, but of "the right of the people to keep and bear arms". This in itself is highly significant. When the Constitution means States, it uses the word "States". When it refers to "the people", it plainly means the people. The term "the people" cannot somehow be assimilated into the phrase "the States" without changing the meaning of the Second Amendment. The right protected is a right of the people, not of the State.
         The plain sense of the Second Amendment is that the people must be given the option of arming themselves, so that they can function as a militia, a militia which can serve as a check upon then power of government, and is ready, willing and able to use violence against "the unfree State", tyrannical government.
         Throughout this article, I have been assuming that the term "State" refers strictly to the political organization we know as a "state". There are, of course, other meanings which can be given to that term, none of which defeat my claims, but in fact make them more powerful, and could only have the effect of expanding the scope of the individual right memorandized by the Second Amendment. One such meaning is demonstrated by substituting the term "Condition" for the word "State", and reading the Second Amendment as "A well regulated Militia, being necessary to the secuity of a free Condition, then right of the people to keep and bear arms shall not be infringed". While I have not investigated all of the variant meanings ascribed to the word "State" in eighteenth century usage, this is a possible meaning, and one that may merit consideration and research.
         Finally, let us ever bear in mind that the Second Amendment prohibits infringement of the right to keep and bear arms, but does not identify which potential infringer is the subject of its prohibition. The only conclusion that can be drawn from this is that no person, natural, corporate or political, may infringe upon that particular liberty. The plain implication of this is that the Second Amendment is not only a bar upon the states, but upon the federal government. I ask my readers to note that the First Amendment, by contrast, states that "Congress shall make no law ...", thereby limiting the federal government alone. Indeed, there is ample evidence that the states themselves, in the days prior to the adoption of the Fourteenth Amendment, perceived the Second Amendment to be a limit on their own power. Of the various judicial decisions articulating this view, perhaps the most concise statement may be found in the decision of the Georgia Supreme Court in the case of Nunn v. State (1846), which contains the following observation:

The language of the second amendment is broad enough to embrace both Federal and state governments -- nor is there anything in its terms which restricts its meaning ... Is this right reserved to the State or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disenfranchisement from Congress, they ever intended to confer it on local, legislatures. This right is too dear to be confided to a republican legislature.

         It is indeed interesting that, the closer one moves towards the date on which the U.S. Constitution was adopted, the more expansive the interpretations of the courts and commentators become with regard to the meaning of the Second Amendment. On the other hand, the judicial decisions seeking to restrict its scope, and either deny or limit the individial right it guarantees, are usually of very recent vintage. Most of them are obliged to rely upon authorities only recently created. Several twentieth century courts have relied upon articles such as Rohner's The Right To Bear Arms: A Phenomenon Of Constitutional History , (16 Catholic U.L. Rev. 53 (1966)), an article which claims that popular support for the individual right to keep and bear arms has eroded, and that the call for an armed citizenry is typical of "reactionary political groups". Of course, such assertions shed no light whatsoever upon what the original, objective meaning of the Second Amendment, but citing such articles as authoritative can gratify the whims of certain judges, whose privileged position in society, and class prejudice, lead them to believe that they improve on the Bill of Rights when they amend it by fiat. Learning where the law comes from is very much like visiting a slaughterhouse to find out about meat; the experience is educational, but can also be disgusting.
         The Constitution is a critical part of the contract between our government, and the people it governs. If we are forced to accept a contrived meaning of its plain language, which flies in the face of a literal reading of its guarantees, we are being cheated. And we ought to respond with that same outrage which is the right of any people who have been cheated out of something of surpassing value. This is particularly the case when our right to bear arms is infringed, because the Second Amendment is the bottom line guarantee against tyranny, and the only guarantee with physical force behind it. We must also never confuse the legal obligation to obey a law which would disarm us, with the moral obligation to obey such a law. To say that we have a legal obligation to act or desist from acting, means that we shall be punished if we do the forbidden act, or fail to do the mandatory act. To claim that we have a moral obligation to obey is an utterly different matter, and the difference should be noted and taken to heart.

Note: The author, Joseph William Reichert, is an attorney practicing in Albuquerque, New Mexico, and concentrating in the field of appellate advocacy. He may be reached at 71511.3477@compuserve.com

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