Ernest Tews has written a letter to the editor of the Asbury Park [NJ] Press, demanding regulation of gun owners. Actually he seems to think that the Second Amendment makes such a demand. He starts out conventionally enough, quoting the Second Amendment and then making the usual plaint that’s it’s just so darned hard to understand. “The Second Amendment says, ‘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.’ The Second Amendment is frustratingly non-specific, but let’s look at it as a product of the time it was written.” I think part of Ernest’s confusion here . . .

is due to the Amendment’s somewhat archaic construction. And part of that comes from changes in language and the meaning of words over the decades. So are there any examples of this style of prefatory statement grammar we can find to help Ernest out? How about this phrase from the NH Constitution:

The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.

Or, from the Massachusetts Constitution:

The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.

Obviously the Founders set great stock in the free press. But these statements quite clearly demonstrate this somewhat archaic construction of a prefatory clause followed by the operative (or independent) clause. Keeping that construction in mind, let’s look at a Second Amendment analogue. Suppose the First Amendment contained a similar phrase:

A well-educated electorate being necessary to the preservation of a free state, the right of the people to read and write books shall not be infringed.

Do you think anyone would argue that this means literacy and book ownership should be limited to registered voters? Of course not. As for those who would argue that “Unlike guns, books never killed anyone” I would say Mein Kampf, The Turner Diaries, The Protocols of the Elders of Zion, The Satanic Verses, Stephen King’s Rage (originally titled Getting It On), etc.

In addition, when you have all nine Supreme Court justices agree that it protects an individual right, it must be specific.

Second, lets look at the time in which it was written — shortly after these small colonies fought a long war against one of the world’s superpowers. They won by the skin of their teeth, in part by virtue of having the latest and best “military style assault weapons” of the day; weapons which were actually superior to the “Brown Bess” musket with which the British troops were armed.

Having freed themselves from an oppressive government which had ignored and denied their rights as Englishmen, they were determined not to make the same mistakes again. One of the “mistakes” which led to the Revolution was the fact that there was nothing like a Constitution or a clearly established set of an Englishman’s rights. There were traditions, understandings of “the way we have always done things” and precedents. But those had a way of being reinterpreted in ways unfavorable to individual rights.

Thus, looking at it as a product of its time, we can see that the Founders would have wanted explicit rights for individuals and explicit (and limited) powers for the government. They also would have wanted to ensure that, should it ever happen that the people once again suffered a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism that those selfsame people would have the means to throw off such Government, and to provide new Guards for their future security. So to speak.

But enough of my interpretation, let’s see what Ernest thinks is important about that time:

A war was recently ended with a colonial power. Americans were steadily moving into and taking aboriginal lands from the previous owners, who were angry enough to fight back. The militia of a place was a quasi-governmental group: Folks got together to protect themselves; elected leaders and the local governments supported those efforts.

And all of these are reasons why the Founders would not intend the Second Amendment to protect the individual right to keep and bear arms? I’m not following you Ernest.

Now look at today: We have a well-regulated militia — local police and the National Guard. We have a free state.

I’ll grant you that the police are becoming more and more militarized, but in theory they are peace officers, not soldiers. Which means that no, they aren’t any sort of “militia”. As for the National Guard, they are indeed, by statute, part of the organized militia.

Unfortunately for Ernest, however, the individual right to keep and bear arms protected by the Second Amendment really has nothing to do with the organized militia. As the Supreme Court held in Heller:

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Let me repeat that for all the Ernests out there: The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. So what’s the next arrow in Ernest’s quiver?

If one were to include all folks who wish to own a weapon, and have them included in the “militia” envelope, the assumption is the militia is to be well-regulated. That is part of the deal. If you want to use the Second Amendment, you have to use the whole thing.

No, the whole militia question is a red herring used by anti02A types for decades to try to disguise the truth that the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility.

In addition, the Founders’ concept of “well-regulated” did not mean “wrapped up in red tape” as Ernest seems to believe. To find out what it meant in the 18th century, let me turn to Samuel Johnson’s A Dictionary of the English Language (published in 1755). Johnson’s dictionary was considered by most to be the pre-eminent English language dictionary until the publication of the Oxford English Dictionary some 175 years later. Johnson defines regulate as:

  1. To adjust by rule or method
  2. To direct

If we look up adjust we find:

  1. To regulate; to put in order
  2. To make accurate
  3. To make conformable

And the definition of direct is given as:

  1. To aim in a straight line
  2. To point against as a mark
  3. To regulate; to adjust

Finally the Oxford English Dictionary itself defines regulated as:

  1. Governed by rule, properly controlled or directed, adjusted to some standard.
  2. Of troops: properly disciplined (Obsolete rare).

Although work started on the OED in the mid to late 1800s, it wasn’t completed and published until 1928 so it’s not unreasonable that they classified that particular usage of regulated as obsolete.

Next Ernest goes into some modern-day type regulation he would apparently like to see implemented:

One of the proposed New Jersey gun-control laws, written by Assemblywoman Angelica M. Jimenez, would require a mental health evaluation and a police inspection of the prospective gun buyer’s home. Is this too strict?

No it isn’t too strict; it just constitutes multiple violations of peoples’ civil rights. Why in bloody blue blazes should I have to prove my sanity to anyone for any purpose? Is it the default assumption in New Jersey now that anyone who wants to own a gun is mentally ill? Okay, come to think of it, given the insane laws and even more insane punishments ($1,000 fine per round of hollow-point…a year in prison for unlicensed possession of an AirSoft gun) gunnies face in the Garden State, maybe they have to be a little nuts to live there.

Back on topic. I don’t have to demonstrate my sanity to vote, go to church, publish a blog, drive a car or buy a dog; I shouldn’t have to prove it to do anything at all. As for the “police inspection” of the home, can you say Fourth Amendment boys and girls?

Too many of the recent acts of violence were perpetrated by people who would not pass such a review, but because a review was not required, they purchased guns anyway.

Ayup. That’s because (unlike plenty of other places Ernest wouldn’t want to live) we have an assumption of liberty here. I once read an interesting definition of the difference between freedom and oppression. In a free system, the laws state what you are prohibited from doing, whereas in a tyranny the laws tell you what you are permitted to do.

There’s an interesting thing about those “recent acts of violence” — all but one of them took place where peoples’ liberty was restricted (i.e. “gun free” zones). As for the single exception, if the stinking Pima County Sheriff had arrested the Tucson shooter when he started making death threats all over town, the shooter would have been behind bars when Rep. Giffords held her parking lot meeting.

And the National Rifle Association has pointed out that mental status should be checked, but it is currently not required.

Ernest, there’s a reason I’m a Life Member of Gun Owners of America and not the NRA. Setting that aside, though, you’re just plain wrong. What Wayne et al. have been calling for is ensuring that people who have been adjudicated a risk to themselves or others get on the “no buy” list, not that anyone and everyone who wants to buy a firearm should undergo a mental health evaluation.

I would add the idea that any new owner of a weapon must also go through the training a police officer takes for carrying a weapon, and the new owner should be re-qualified at least as often as a police officer.

Except 90% of the POST standards have absolutely nothing to do with carry by your average Joe. For us “civilians,” there’s no “continuum of force.” We aren’t worried about needing to use less-than-lethal force, we aren’t going to try to approach a BG to handcuff him. For us, it’s simple; do I face the imminent threat of death or great bodily harm? If yes, deadly force is authorized. If no, deadly force is prohibited.

As for requalification, if memory serves, the average cop shoots 50 or 100 rounds once or twice a year to qualify. Hell, I’ve been known to shoot 10 times that amount in a single weekend. Obviously Ernest doesn’t know many carry permit holders; otherwise he’d know that the vast majority of us who carry by choice (instead of as a requirement for a job) are considerably more responsible than the average citizen. Since I have chosen to take responsibility for my safety and that of my loved ones, I have a duty to be able to shoot straight, to have properly functioning equipment and to know and practice safety at all times.

As to carrying a weapon in colleges or restaurants, what a disaster: Alcohol and weapons don’t mix at all, and please don’t waste my time saying colleges have no alcohol problems.

Yes many college students drink to excess; doing stupid things is part of the process of growing up. How else can we know our boundaries unless we test them?

As for carry on campus being a disaster, please list for me all of the drunken accidental shootings on campuses in Utah and Colorado. That will be a short list because you can’t; there haven’t been any of the “sky is falling!” problems that the Chicken Littles among us predicted when campus carry was legalized there.

Finally, saying “alcohol and weapons don’t mix” is meaningless. Right now, locked up in my basement, I have half a dozen bottles of single malt scotch, probably half-again as many bottles of rum. I have easily a dozen cases of home-brewed meads, melomels and wines.

I also have at least half a dozen pistols, 4 rifles and 3 shotguns locked up in my gun safe. Oh, and my home carry piece and back-up, too. In addition, I regularly have wine or beer with a meal. So does this mean I’m mixing alcohol and weapons? OMG! Call out the National Guard!

No, Ernest, the Second Amendment isn’t “non-specific,” cops aren’t “the militia,” guns and alcohol do sometimes mix just fine, and the sky is not falling.

Honest.

RELATED ARTICLESMORE FROM AUTHOR

36 COMMENTS

  4. People need to understand that if it comes down to it individuals are going to be defending the country at a very basic level. It’s in the country’s best interest for all able bodied people to be able to use and possess firearms as well as be marksmen.

    Or do we just have faith the system will protect us?

  5. This is the second time in as many days that I’ve seen the “police are the militia” argument. Does anyone have any idea where this is coming from? It’s truly chilling to think of how many Americans might hold this bizarre notion. It has no basis in common or statute law, western language, or tradition.

    What’s disturbing, though, are the implications about how these people see the role of law enforcement and the rule of law. A militia is unequivocally a military force, and any jurisdiction policed by a military force must be considered to be under martial law. So the “police as militia” argument boils down to “no guns for you because we’re under martial law, and I’m OK with that.”

    • When someone asks me why anyone needs a big magazine I ask them why do the cops need them. They either reply “because they are the law” or ” so they can keep up with the bad guys”
      How many bad guys is one cop going to engage anyway? And with inevitable backup there could be several hundred rounds available. This is how we get 60 bullets fired at one suspect.
      The people are too willing to militarize the overlords without considering what having that firepower will lead to. SWAT teams are an indicator of that power.

      • I had a friend who said high-capacity magazines should be banned, because law-abiding citizens don’t need them.

        I said they should apply that ban to the police as well.

        He said no, police need them.

        I asked why.

        He said because criminals won’t obey the ban.

        Well, I said, there you go. That’s why law-abiding citizens need them. And why any ban on them would only punish law-abiding citizens.

    • “The police are the militia”

      In the former Soviet Union & its former satellite states, the word for “police” which appears on their riot shields, is “Militia”, or variants such as “Militsya”, “Miliciya”, etc. The individual Russian policeman is a “Militsiyonaer” (bad transliteration).

    • It seems to me that this idea springs from the fact that the police have taken over the function of the milita, nsofar as the militia had a function after subjeugation of the indigenous peoples. The national government and its army is responsible for national and border security, no state since 1864 has invaded any other state, living the militia with only one historic function: keeping public order. In times of riot, the militia would be called out to quell it, a function performed by the police. The militia did indeed, as necessary, perform other police functions within the community, and those two have been taken over by the police. Further, although many officers lose sight of the fact, police are civilians answerable to a local or state government but not to the federal government,anmost importantly they are not military forces.

  6. Excellent takedown. Why is “classic” education so important? Why is the study of English so important? Here it is in concise terms. Commas and clauses have purpose beyond a pause.

  7. The 2A is not “frustratingly non-specific”, I think it is intentionally non-specific.

    That was the best way to make it difficult for it to be infringed. Duh.

  8. Just went through the comments on the letter to the editor. The comments seem to lean toward supporting 2A. Not unusual, from my experience, apart from the most rabid lefty blogs. Either more pro-2A people, or more that are interested enough to read and comment. Encouraging.

    • I’m finding more and more people fighting the anti-2A idiots on the comment sections of crappy articles.

  9. Mr. Ernest Tews’s line of thinking is disgusting and offensive to anyone who has bothered to study the Constitution, but I’m afraid it is also very common.

  10. You lost me at “In addition, when you have all nine Supreme Court justices agree that it protects an individual right, it must be specific.”

    I read most of the opinion a while ago, but I seem to recall the court broke 5-4 on the issue of whether the 2A referred to an individual versus collective right. This one is hanging by a thread.

    • Incorrect. All justices held that it was an individual right, but the four dissenters held that it was an individual right to be exercised in connection with service in a militia. Therefore, they conclude, there is no individual right to keep and bear arms for individual self defense.

      Nor is this decision necessarly hanging by a thread. The doctrine of stare decisis means that, absent compelling circumstances, later courts are bound to follow the decisions of ealrlier courts, even if the later court is convinced the prior decision is incorrect. Prior decisions are rarely overruled–instead they are distinguished into oblivion. That too would be difficult to achieve given the breadth and language of the majority opinion, although the various circuits have generally attempted to do so rather than be the first courts to recognize a right to bear arms outside the home, potentially opening the floodgates to Constitutional carry. So they have puntd, hoping that the Supremes will be the ones to take the heat for a potentially dramatic change in the legal landscape in the US. And if Scalia is to be believed, the court is chomping at the bit to take “the right” case, which may turn out to be Kachalsky (2d Circuit) or Moore v. Madigan (&th Circuit) (or both)

      • Perhaps I parsed the opinons to loosely. I’m not a lawyer, so I’m having trouble disinguising between a “collective right” and an individual right to be exercised in connection with service in a miltia. Please elaborate.

        Stevens invoked stare decisis to lecture the majority in his dissent, so I assume you are arguing that Heller itself will bind any subsequent SC rulings wrt the individual right interpretation. If this is a correct assumption, I’m not as confident as you appear to be that stare will matter one iota to new court determined to roll back Heller. Whether a new court chose to distinguish into oblivion or simply overule Heller, stare looks like a Maginot line in this case. At best, right now Scalia has a 2nd and 7th circuit split to work with. I’m not comfortable that it will be enough to solidify or expand Heller.

        From where I sit, it looks like we are one chicken bone lodged in the throat of a conservative SC Justice from being back to square one. But I’m willing to be reassured otherwise.

  14. Start applying the same draconian legislation to all parents before they can breed at all, require special training and licences for people that want to raise autistic and other mentally deficient children, limit the number of children you can legally have, etc, etc…then maybe, just maybe we can talk about increased gun control. Though last I checked your right to breed isn’t even protected by any of the bill of rights.

    • Try reading Roe v. Wade, and the other penumbral privacy rights cases. Procreation is a fundamental and protected civil right.That’s why a judge cannot order a welfare momma with ten kids to be sterilized or even to take birth control, and dead beat dads cannot be forced to have a vasectomy, no matter how much that might be a good thing for the rest of us who have to pay for the housing, education and support of their unwanted children.

      • Roe v Wade is only about abortion. If it had a wider meaning the “Affordable Healthcare Act”, better known ads Obamacare, would be unconstitutional since it violates doctor-patient privacy and empowers the government to arbitrarily proscribe any treatments it chooses.

  15. “I would add the idea that any new owner of a weapon must also go through the training a police officer takes for carrying a weapon, and the new owner should be re-qualified at least as often as a police officer.”

    So, by NYPD standards I have to be able to hit innocent bystanders when shooting at a “target” about 10 feet from me. Got it.

  16. Regarding the word “regulated”. The 22nd Infantry Regiment wore militia grey instead of Army blue in the Battle of Chippewa in 1814, and were mistaken by the opposing British general as militia. His exclamation upon learning the truth as they advanced under withering fire became the 22nd’s unofficial motto: “Those are regulars, by God!” The grey uniform also became the basis of West Points grey cadet uniforms.

    This is a roundabout way of saying that regulars are regulated (disciplined, trained, et al), and stand firm under fire. This is what the Second Amendment is all about.

    • Exactly.

      This is what Andrew Fletcher was getting at when he coined the phrase – in 1697 (or thereabouts) in Scotland. Fletcher was getting at the notion of an armed citizenry being trained as militia being proof against the wanton waste of life and abuses of the people by the armies of the nobility of Europe:

      http://ia700506.us.archive.org/5/items/discourseofgover00fletuoft/discourseofgover00fletuoft.pdf

      In the day of the Founders, the term “well regulated militia” had a very specific meaning, and it wasn’t “regulation” in the FDR-era Democrat meaning of the word. It meant men trained at arms, who did not break and run at the sight of the enemy.

  17. Bravo Bruce..
    Now about that Malt Scotch… 😉
    I think a road trip to the great white north is in order lol
    The reality is, as we have seen time and time again, the citizen disarmament bunch want just that. They clearly do not refer to the wide breath of studies and statistics, and use a narrow point of view. They seem to have lost the idea that we are, or were, what ever freemen. We wish to not loose any more of that and certainly not to his ilk.

    I will not say the sky is falling but it is in a sense. Really… Our liberties are being chipped away day by day. The Tin Foil Hat crowd is having aneurisms over Eric Holder’s response to drone attacks on US soil. It clearly shows this administrations complete and total disregard for the constitution and other federal laws. The more you read the more you pretty much begin to freak out.

  19. My idea of a well-regulated militia is every municipality maintaining a shooting range and supplying every volunteer citizen with 500 rounds/month to keep up on accuracy and operating efficiency. Toss in some drills to aid in disaster preparedness and hurricane relief, and voila…

  20. Hey Ernest, right next door to you in Pennsylvania it’s perfectly legal to be knee-walking drunk and have every gun you own holstered around your waist.

    So you can start shitting yourself any time you like.

  21. I know that this is a repeat but here goes.

    The term regulation means drilled. Specifically, Madison meant the ability to execute the Prussian manual of arms as taught to the Continentals by Barron Frederick Wilhelm von Steuban. Given the repeated failure by the Militia 200 years ago one could say that we have never had a well regulated Militia.

  25. As for books killing people:

    The scribblings of that whiney sponge Karl Marx have resulted in more deaths by governments than anything else in human history. The worldwide pile of stiffs from communism is somewhere between 60 and 80 million bodies deep…

  26. Granted this is a gun blog, I couldn’t help notice the comment above mine. Karl Marx and commies killing 60 to 80 million. I have no doubts on that however if you name any books of a religious nature…. How many have they killed?

Comments are closed.