The following is chapter one of an upcoming book by Bruce Krafft:
I have often heard people complain about how “confusing” the Second Amendment’s wording is. 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. Part of that is due to its somewhat archaic construction and part of that comes from changes in language and the meaning of words over the decades. And unfortunately . . .
Part of that comes from deliberate obfuscation on the part of those working to promote and exploit any uncertainty they can in order to press for their ultimate goal of complete victim disarmament. They claim that the prefatory clause (A well regulated militia being necessary for the security of a free state) is not an explanation of why the right is important and must be protected but instead is a limitation on the main clause (the right of the people to keep and bear arms shall not be infringed).
So are there examples of Second Amendment style prefatory statement grammar we can find which would counter this argument? 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 in addition 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 the 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. Admittedly analogies are not logic; I believe, however, that this analogy is persuasive. As for those who 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.
But let us suppose for a moment that the militia clause were restrictive; what constitutes “well regulated” and who comprises the “militia”?
The antis would have you believe that “well regulated” means that the militia should be thoroughly bound by laws and strictures, but that is a more recent meaning of the phrase. To find out what it meant in the 18th century we 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:
- To adjust by rule or method
- To direct
If we look up adjust we find:
- To regulate; to put in order
- To make accurate
- To make conformable
And the definition of direct is given as:
- To aim in a straight line
- To point against as a mark
- To regulate; to adjust
Finally the Oxford English Dictionary itself defines regulated as:
- Governed by rule, properly controlled or directed, adjusted to some standard.
- Of troops: properly disciplined (Obsolete rare).
and gives the following example of its use in that sense:
1690 London Gazette No. 2568/3 We hear likewise that the French are in a great allarm in in Daupine and Bresse, not having at present 1500 men of regulated troops on that side.
We can also look at the writing of the Founders and their contemporaries to glean their understanding of the term. From a letter General Washington wrote to Major General Philip Schuyler in October of 1776:
I am unacquainted with the extent of your works[1] and consequently of the Number of Men necessary to man them. If your present Numbers should be insufficient for that purpose, I would then by all means advise your making up the Deficiency out of the best regulated Militia that could be got. Some might likewise be useful in bringing up Supplies and fill the Places of Men who would render more Service with Arms in their hands.
Thirty years after the ratification of the Bill of Rights writers still used the phrase “well regulated” to mean properly functioning. In her Letters from Alabama on Various Subjects Anne Royall (considered by many to be the first female journalist in the country) we find the following in a letter dated January 29, 1822 written from Huntsville, Alabama:
[Huntsville] has now a population of 1300 inhabitants. Two churches have been built since I have been here; a theatre, (now burnt,) and a number of dwelling houses. … They have a very fine fire engine, and a well regulated company.
Obviously this does not mean that the fire company was thoroughly bound by laws and strictures, but rather that the firefighters were well trained and practiced to work together to fight fires.
Now that we have determined that “well regulated” means “properly functioning”, where can we look to find out who comprises the militia? The antis would have us believe that the militia is merely an obsolete term for the National Guard; hence the Second Amendment only applies to National Guardsmen. Fortunately there are numerous sources available to refute this. During the debates in Virginia on whether to ratify or reject the new Constitution which had come out of Philadelphia, George Mason (sometimes called the Father of the Bill of Rights) said:
A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers.
During those same debates Founder Richard Henry Lee (writing as M.T. Cicero to “The Citizens of America”) explained quite explicitly just who and what constituted the well regulated militia:
No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defence of the state . . . . 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.
In addition to these writings there is also legislative history, some contemporary to the Founding and some more recent, stating who is in the militia. The Militia Act of 1792 defined militia in Section 1:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
In fact current U.S. Code contains a definition of the militia in Title 10-A Chapter 13 § 311:
a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
b) The classes of the militia are—
- the organized militia, which consists of the National Guard and the Naval Militia; and
- the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Which means that, well, pretty much everybody is in the militia.
So what now that we know who’s in the militia the next logical question is what comprised the militia’s duties and responsibilities? And for that we can turn to the Constitution, Article 1, section 8, clause 15:
[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
I freely admit that before I started studying the subject in some detail I had no idea there was any sort of public safety or civic responsibility component to the militia’s duties. Like most people I was familiar with the militia’s military duties, but in an age before police forces the militia also assisted in upholding the law. This common law precept actually dates back 500 years, to 13th century England and the Statute of Winchester which required that anyone who witnessed a crime must set up a hue and cry. All able-bodied men hearing the outcry were required cease their work and take up the chase, continuing the hue and cry from town to town until the miscreant was apprehended and turned over to the authorities.
As for suppressing insurrections and repelling invasions the militia did not live up to the time-burnished image we have of them today. As the Revolution continued, militias (who could elect their own officers) started refusing to operate outside of their home regions, and were plagued by desertion. And although the militia was instrumental in suppressing the Whiskey Rebellion, President Washington was dismayed by their poor organization, dearth of coordination and lack of trained officers and engineers. It was the performance of the militias in the War of 1812, however, which sounded their death knell. They were again reluctant to serve outside of their home states, lacked discipline and, when operating outside of their home region routinely proved unable to stand up to the British regulars.
All of this, however, while enlightening is really immaterial to the Second Amendment since, in fact, the militia clause is dependent upon and not a limitation of the operative clause.
On to the Operative Clause
So now we get to the meat of the Second Amendment:
… the right of the people to keep and bear arms shall not be infringed.
I believe I have shown that the right to keep and bear arms is not reserved to the militia, so then whose rights are protected here? For everyone except lawyers and the antis that is a pretty straightforward question: the right of the people refers to the people. To wit, the same individuals whose rights are protected in the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
And the same individuals whose right to peaceable assembly and petition for redress are protected in the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There are in fact several contemporaneous examples where the phrase “the people” is used to enumerate what are plainly meant as individual rights. An excellent example can be found in the various articles in the Declaration of Rights found in Pennsylvania’s 1776 Constitution:
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure …
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments …
XIII. That the people have a right to bear arms for the defence of themselves and the state …
Similarly the Virginia Declaration of Rights (which was actually passed separately from their Constitution) states in Article III:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community …
And in Article XIII the Declaration states:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state …
If the term the people was meant in a collective sense, as in a group, then specifying that the militia was composed of the body of the people would be nonsensical.
In addition to these examples, the Supreme Court has actually ruled specifically that when the Constitution says “the people” it means individuals. In Dred Scott v. Sandford, 60 U.S. 393 (1856) the Court stated:
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.
We see this again in Adamson v. California, 332 U.S. 46 (1947) when the Court states:
The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government…
And even though he dissented from the majority, Justice Black agreed with that interpretation:
The first 10 amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties.
Finally in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) the Court states:
While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community…
Beyond these court cases, however, lies simple logic. Throughout the Constitution “the people” are referred to as having “rights” and “powers” whereas governments have “powers” or “authority”, never “rights”. Obviously then the people referred to in the Second Amendment are not a select government entity but instead individual citizens. Tenche Coxe makes this clear in his letter of February 20, 1788 to the Pennsylvania Gazette:
The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army must be tremendous and irresistible. Who are these militia? Are they not ourselves? … Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. [emphasis in original]
So That’s Whose Rights Are Protected, Now What Constitutes ‘Keeping’, ‘Bearing’ and ‘Arms’?
While most people have no problem understanding that the phrase to keep and bear arms can and does refer to the activity of an individual, anti-gun groups like the Brady Center to Prevent Gun Violence [sic] have argued that it has an exclusively military meaning. From the group’s amicus brief to the Supreme Court in District of Columbia v. Heller:
The debates surrounding adoption of the Second Amendment, and in particular Madison’s initial proposal to the First Congress, make clear that the framers understood the right to “keep and bear Arms” to refer only to military purposes.
Unfortunately for the Bradys, this is simply not the case. For example both Connecticut and Alabama state in their constitutions’ Declaration of Rights:
Every citizen has a right to bear arms in defence of himself and the State.
Some might try and argue that defence of the State implies service in a militia but since the right specified is for personal defense as well as defense of the state that position is indefensible[2].
Additionally, in their statement announcing the ratification of the U.S. Constitution in 1788 the New York State delegates listed a number of rights which were not part of the Constitution, but which they felt existed despite that exclusion. Specifically:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
Showing that they, at least, believed that the right to keep and bear arms was a right of the people separate from militia service.
Finally, Judge Garwood wrote in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)[3]:
However, there are numerous instances of the phrase “bear arms” being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the “people” [or “citizen” or “citizens”] “to bear arms in defense of themselves [or ‘himself’] and the state,” or equivalent words, thus indisputably reflecting that under common usage “bear arms” was in no sense restricted to bearing arms in military service.
As Judge Garwood’s citation makes clear the concept of keeping and bearing arms was not relegated purely to military service, but also to the fundamental right of self-defense (which we will address again later).
For the definition of keep we can turn once again to Johnson and his dictionary. The first five definitions of keep are given as:
- To retain; not to lose
- To have in custody.
- To preserve; not to let go.
- To preserve in a state of security.
- To protect; to guard.
All these definitions are very close to our contemporary understanding of the word’s meaning so the term keep really need no interpretation. To keep arms means to have them in your possession, not locked up in a militia armory and at a gun range.
So what did the Founders consider to be arms? According to Noah Webster’s 1828 dictionary arms are:
1. Weapons of offense, or armor for defense and protection of the body.
2. War; hostility (as in To take arms, is to arm for attack or defense.)
3. The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.
4. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.
And according to the Online Etymology Dictionary the French word armes appeared around 1300 and meant “weapons of a warrior”.
There are those (like columnists John Foster Way and Jeffrey Levin) who argue:
The Bill of Rights was written in a time when the Second Amendment’s right to bear arms included a one-ball musket and maybe a long bayonet, or a one-shot handgun.[4]
We have available today many things which were not around when the Bill of Rights was written. For example television, radio, high speed printing presses, the internet, cell phones, video cell phones, Mormonism and Reform Judaism; none of these existed in the early 1790s but are people like John and Jeff suggesting that none of these are protected under the First Amendment? Of course they are all protected, because the core right involved (freedom of the press and religion) is not affected by the instruments used to exercise it.
But even if we were to allow such limits, the fact of the matter is that people had access to far more than single shot weapons in the 1780s. There were six-shot handguns like the pepper-box revolver made by London-based firearms manufacturer Henry Nock (inventor of the Nock volley gun capable of firing simultaneously from its 7 barrels) or the Continental firm of Segallas.
We had 9-shot handguns like this one, sold by Christie’s for a little over $30,000 in December of 2006. It is described as:
A rare nine-shot flintlock repeating magazine pistol on the Lorenzoni principle, by H.W. Mortimer & Co., London, gun makers to his majesty, circa 1799-1806
Weapons using the “Lorenzoni System” (as described by ForgottenWeapons.com in a video here) first appeared in Europe around 1680. The mechanism worked by loading several shots worth of powder and ball in the frame. The operating lever loaded a ball and a set amount of powder into the chamber and cocked the locking mechanism. Obviously the machining on these weapons had to be fine enough to seal the combustion away from the remaining powder, but the design was successful enough that it appeared in long guns as well, specifically the 7 shot Cookson flintlock rifle.
Although there are no known examples of it, the Belton Flintlock was said to fire 16 or 20 balls in 16 seconds or less, the 18th Century version of “spray and pray”.
Moving away from firearms, the Austrian army fielded a 22 ball capacity air rifle good for 30 shots before the air reservoir needed changing or recharging. Many historians partially credit the survival of the Lewis and Clark expedition to the fact that they carried such a Girandoni air rifle (purchased by Lewis out of his own pocket) which they demonstrated whenever they met a new Indian tribe. With ballistics comparable to a modern day .45 ACP, its virtually silent operation and its ability to fire many shots without reloading it would have been extremely intimidating even to people who were familiar with black powder weapons, much less those who had never so much as seen a firearm.
So it is obvious that the Founders, being highly intelligent and well-educated men, must have been aware of many sorts of “high powered” and “high capacity” weapons available at that time. In addition, they were aware of the progress science had made in the previous few centuries and fully expected invention and innovation to continue, as demonstrated by the Constitution’s Copyright Clause:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Indeed it is downright insulting to claim that the Founders would have been unable to predict that there would be changes and developments in weapons, which probably explains why they used the general term “arms” instead of specifying particular weapons that were to be protected.
Okay, But What Does “Infringed” Mean?
Well going back to our friend Mr. Johnson we find his definition is:
Infrin’ge, v. a. to violate, break a contract
Well that’s a little vague so perhaps Webster’s 1828 Dictionary had a more comprehensive definition:
1. To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2. To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.
3. To destroy or hinder; as, to infringe efficacy. [Little used.]
Well that seems pretty straightforward. But maybe we should look for places where the Founders used the word and see if they meant the same thing. In the transcript of the June 8, 1789 House of Representatives’ debate on amending the Constitution we find James Madison suggesting for inclusion:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.[5]
This is followed two paragraphs later by the preliminary version of what would become the Second Amendment:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[6]
During Massachusetts’ convention to ratify the Constitution, Samuel Adams proposed the following language be added:
And that the said Constitution be never 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; or to raise standing armies, unless when necessary for the defense of the United States …
I think from these we can see that our modern day version of shall not be infringed to mean is subject to reasonable regulation would not sit well with either Mr. Madison or Mr. Adams.
Okay So We’ve Got the Meanings of Each of the Words, but What Do They Mean When Put Together?
Putting all of these different words together, what does the Second Amendment actually mean? We are now departing from legalistic, historical and linguistic analysis and delving into my personal philosophy regarding the meaning of the Second Amendment, which, some of you may have surmised (given my penchant for quoting L. Neil Smith’s 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[7]) is quite rigorous.
The Founders believed that a well-trained, properly functioning militia was essential to protecting the nation and preserving citizens’ liberty. As time passed, however, it became obvious that in practice the militia was ill-trained, undisciplined and poorly led which resulted in the creation of a standing army. But if we no longer require a militia, does that mean that the antis are right when they says that the Second Amendment is an outdated relic that should be dumped onto the ash heap of history?
Of course not! First of all, maintenance of a militia was only one of many reasons for having a Second Amendment. Secondly, despite many peoples’ belief to the contrary the Bill of Rights does not give us any rights.
Periodically (especially after a highly publicized mass shooting) there will be calls for a repeal of the Second Amendment. Supporters of this idea apparently believe that getting rid of the Second Amendment means that the freedom to own and carry the weapon of your choice[8] will somehow go away. They are operating under the delusion that the Bill of Rights grants people rights; it does nothing of the kind. The Bill of Rights protects rights with which people are endowed by their Creator. Even the most cursory reading of the document should make that obvious. Let’s parse the First amendment, shall we?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble … etc.
Note that Congress is not creating these rights; the free exercise of religion, the freedom of speech, the press and assembly are all presumed to already exist. After all, if people did not already have these rights then there would be no need to prohibit Congress from infringing them.
How about the Fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … etc.
There it is again; the [already existing] right of the people to be secure in their persons … etc. shall not be violated. Just by virtue of being a human being you have the right to be left alone and not have government nosies snooping through your mail, phone records, searching your house, etc.
Likewise, the Second Amendment doesn’t say: A well-regulated militia … etc., the people are granted the right to keep and bear arms. No the way it’s worded presupposes that the people already have the right to keep and bear arms. So if it is a pre-existing right and that right shall not be infringed what gun laws are permissible?
How about, none?
The sole exception I would be willing to grant is that someone who is in some sort of locked down facility, be it a prison or a ward for the dangerously insane, should not have access to weapons. In other words, to quote National Gun Rights Examiner David Codrea: “If a person can’t be trusted with a gun then they can’t be trusted without a custodian.
“But, but, but . . .” I hear someone spluttering in the background “surely you don’t mean criminals should have guns?!?” But, but, but . . . I do mean precisely that, and there are several reasons for my belief. First and foremost is the fact that there’s a difference between a malum prohibitum and malum in se law, especially as regards gun control. Malum prohibitum literally means wrong (or evil) because prohibited while malum in se means wrong/evil in and of itself. A good example of mala prohibita laws is those regarding so-called “assault weapons”; the fact that your weapon has a flash-hider, a telescoping stock or a bayonet lug isn’t something that’s wrong all by itself. Laws against shooting someone (outside of DGU[9]s) are good examples of mala in se laws because harming someone else is obviously wrong in and of itself. Got it?
The primary purpose of mala prohibita gun laws isn’t to punish bad behavior, but to prevent it. Laws against felons possessing guns are an excellent example of this. The idea behind these laws is that they will prevent crime by preventing access to one of the tools criminals use. The problem is that when you pass laws which are primarily focused on preventing some sort of crime and they don’t work, the laws’ proponents will say that the laws need to be made stricter or some “loophole” or another needs to be closed, when the fact of the matter is they should just be repealed.
I have often suggested that since gun control laws don’t work, they should be repealed. One of the two standard retorts I get from the antis is “well since laws against murder don’t stop all murders should we just go ahead and repeal them?” This is why I explained the difference between mala prohibita and mala in se laws; although they do have a deterrent effect, the primary purpose of laws against murder is not to prevent murders but rather to punish people who commit them.
Most gun control laws, however, aren’t written with an eye towards punishing bad behavior but rather trying to prevent it. As I mentioned earlier, various “assault weapon” laws are good examples, as are background checks, prohibitions on felons or domestic offenders having guns, bans on concealed carry and bans on guns in certain locations (like schools, churches, government buildings, etc.); none of the proscribed items or behaviors actually cause any harm. Instead they are viewed as being precursors to criminal behavior.
Second, the right to self-defense antedates the Constitution, the Magna Carta, Hammurabi’s Code, the Bible, written language, hell it even antedates spoken language because even animals have the right to defend themselves! This right should not go away merely because you have been convicted of a crime; and the safest, most effective self-defense tool in existence is the gun (more on that later).
Actually I take it back; there are some reasonable regulations on the Second Amendment that I can fully support. I don’t think that politicians, bureaucrats or cops should be imprisoned for any term of more than 10 years or fined more than $100,000 (just like any other civil rights violation under 18 USC §242) for violating (i.e. infringing) or attempting to violate, someone’s Second Amendment rights. Of course if the violation led to the death, kidnapping (i.e. “wrongful arrest”), attempted kidnapping or sexual abuse (i.e. strip search) of a citizen exercising their rights I would set the maximum term at life with no possibility of parole.
Somehow I don’t think this is what most people think of when you bring up the subject of “reasonable regulations”.
[1] I.e. fortifications
[2] Sorry, couldn’t resist!
[3] Dr. Emerson was challenging his conviction for firearms possession while subject to a domestic protection order
[4] John Foster Way, The Norwich Bulletin, May 4, 2012 “Issues must be looked at individually, sensibly”
[5] David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792 (Golden Oak Books, 2001) 654.
[6] Young 654-655
[7] L. Neil Smith: Letter to a Liberal Colleague
[8] L. Neil Smith: Letter to a Liberal Colleague
[9] Defensive Gun Uses
Superb article. Will share with others.
I concur.
Gun rights for violent felons? No wonder we have trouble being taken seriously.
Codrea says: “If a person can’t be trusted with a gun then they can’t be trusted without a custodian.” Well, he’s right. Never trust a violent felon, ever. They are dangerous even with a custodian, in prison, where they routinely find ways to kill and maim other, equally dangerous violent felons, guards or anyone else they can lay their hands on. Once released, 65-70% will be rearrested for the same or worse crime within three years — and those are only the ones who are caught.
Facilitating gun possession for the neighborhood serial rapist? Sure, if the Constitution is a suicide pact. If that’s really what the Second Amendment means, then we’d be better off repealing it NOW.
I do not believe that the Founders would have supported gun rights for criminals. On the contrary, our gun rights are protected by 2A so we can defend ourselves against them, which is only one reason why I’m so devoted to 2A.
Back in those days violent felons were shot down or hung, so it wasn’t really an issue.
Actually yes, repeat offenders were pretty rare. If you survived your first run in with the law and got prison instead of the rope the prisons were so hellish as to break the spirit and will of most who entered them.
As for the 2A. How well educated do you have to be to figure it out? I have a GED and I know what it means. Maybe the well educated brain has been trained to ignore logic and reason.
jwm-some people are educated beyond their intelligence. My pastor says that some educated people have more degrees than a thermometer and still don’t have a lick of sense… Common sense ain’t so common these days.
Felons are people too; statistically, if they aren’t killed beforehand, the great majority give up the criminal life style in their thirties and forties; to deny them for a life time the ability to effectively defend themselves and any family they might have is an abomination!
Many states had as part of thier laws before the life time federal law was passed in the sixties that felons could get thier gun rights back after a certain number of years probation, five years as an example.
I think the life time federal law should be repealed and felons should be given a chance to show they have been rehabilitated after they’ve “paid” thier debt to society.
You make a good point. Yet at the same time, there has to be a price for their acts (yes, besides the actual custodial sentence) and protection for the non-felons in the population. I don’t know all the details about pardons, discharges etc., and I am sure rules vary from state to state, but if you’ve kept your nose clean for 10 years after the end or your parole or probation, then I would accept the restoration of the right to own long guns, kept for home defense, hunting or competition. No CCW or open carry though. Sorry absolultists, I just don’t trust that much.
You don’t have the Constitutional Right to not be scared or offended.
That being said, if they meet the requirements of their State, they are good to go, regardless of your childish fear.
No, there does need to be punishment beyond the actual prison term or fine. That’s the point of the term or fine. If it’s not enough of a punishment, it should be more severe (and none of this good behavior crap). But once you’ve served your time and paid your fine, you’re just as much a part of society as anyone else.
Punishment for a crime is not restricted to incarceration and fines.
People say,”He paid his debt to society so the slate should be wiped clean.”
Being locked up doesn’t benefit society other than forcing cessation of harm.
No debt is being paid.
A sexual predator can never undo the harm he has done and reportedly never ceases to be a predator.
No matter what we decide, we should never forget these facts.
IDK if I’d go so far as to suggest that laws banning firearms ownership by felons ought to be repealed, but agree fully that they’re ineffective and the reason is self-evident. Anyone, especially after he’s gone through the criminal (in)justice system and even done time in the state pen; if he’d be stupid enough to use a firearm in commission of a crime (like armed robbery), then a five-year sentence (a “nickel” in the thug parlance) or a sentencing enhancement means nothing to him. Hell, with so many states having “Three Strikes” laws, which are NEEDED, many thugs are fatalistic and won’t be taken alive, hence the increase in terrible car chases and/or standoffs, because these criminals have nothing to lose but rotting away in prison for good.
I’d rather see the NFA Act repealed on the basis not only that it’s indeed an infringement of the 2A, but also the prohibition of firearms to felons by the several states is, under the Ninth and Tenth Amendments, a matter for them to decide. However, I have no issue in principle with prohibition by MY state of California forbidding a felon to exercise his otherwise 2A on the basis that the Government has a compelling interest to “infringe” it…hell, it sent him to PRISON, right? I could better see this if for all but the most serious of felonies that a person could gain certification of rehabilitation and have his felony conviction expunged; it should not be an EASY process, requiring a lengthy record of law-abiding behavior and mending ones ways sufficient to demonstrate to the Court that indeed the felon is “rehabilitated”. For some things, though, the felon would be on lifetime probation and/or parole, and this would be reasonably impossible, else the only thing to do would be to incarcerate him for life; which itself might not serve the ends of justice.
I think the explanation of Malum Prohibitae versus Malum Per Se is SPOT ON! We outlaw things like murder, rape, and robbery because they’re acts that are wrong, if not dowright EVIL, and the purpose of the law is to apprehend and punish those that commit these crimes, to protect society from that criminal, to send the message that “do this crime, you will DO THE TIME” (or be executed), and to provide a sense of justice to the victims and society that these crimes are given appropriate retribution.
While having laws under the concept of “Malum Prohibitae” is most certainly correct, it would seem that the Government would have to demonstrate that there was a compelling public interest for said prohibition. When folks make comments like, “where does the Constitution ALLOW for this or that ‘right'”, my answer ought to be…NOWHERE! The Constitution describes the specific powers allocated to the Government and the first ten amendments RESTRAIN the Government in specified things, but the Ninth and Tenth Amendment are there so that the Government isn’t given “carte blance” to prohibit something just because there was no explicit mention in the first eight amendments.
The trouble with the 1968 NFA act which prohibits at the Federal level felons to own guns, is that it didn’t stop there, as anyone would predict. Fast forward 28 years and in response to the sordid case of the OJ Simpson (mis)trial (yeah, I know, he was found ‘not guilty’ of two counts of murder), and we have a call to “do something” about the issue of Domestic Violence, and so we get the Lautenberg Amendment, passed by a REPUBLICAN controlled Congress, no less! Now, do I feel sorry for wife beaters to lose their guns…no, not at all, but the law proscribes their 2A rights even for a MISDEMEANOR, and even for acts committed prior to the law’s passing in 1996, which is very much an EX POST FACTO LAW, since it proscribes a Constitutionally guaranteed right. This turns the Constitution on its head, as well as any notions of due process. You can be sure that more DV suspects, especially those in law enforcement or the military, are doing much more to fight the charges, when they ought to focus their efforts on accepting responsibility for their violent (to their wives or gfs) ways and getting counseling. Several studies indicated that DV occurs among LEOs at rates estimated to be 2X to 4X higher than the general population, but arrests and prosecutions are far, far lower…for the obvious reason of the “thin blue line”, any cop knowing that if he arrests a fellow cop for DV that will be the end of his “buddy’s” career…so in a cockamanie way, a well-intention Federal law has the opposite results of what was intended! But this is typical for statists and others that don’t respect the Constitution, they seek to circumvent it, for political gain, for the appearance of “doing something”…which frequently causes far more harm than good.
Excellent well written article.
How unfortunate those most in need of this well formed lesson likely will never seek it out. This should be shared by those who “get it” with those unwilling or unable to sift meaning beyond the literal and contemporary. To the author, well said. To the readers, spread the word.
Of the three basic liberal arts–grammar, logic, and rhetoric–the control freaks fail the first two and have only a weak grasp of the third. Bruce, you have done an excellent job at all three.
My only quibble is that there needs to be some answer to the claim that the Second Amendment includes nuclear bombs and biological weapons. That’s easily addressed by noting that “arms” in this context is understood to mean personal weapons, not collective ones. Letters of marque, for example, authorizing a ship to be used as an agent of national power are dealt with elsewhere.
Very nice article. I have researched the founding father’s statements on the matter myself and this is a very nice analysis of the phrasing and intent.
So even if you want to use the “militia clause” aren’t we all technically part of the militia since we are citizens provided we are between 17 and 45?
It’s clear the intent is that the people need to be as well armed as our government to keep a level playing field and tyrants in check so that the rest of our rights aren’t infringed.
The English language has changed over 200 years. In 1791 the Meaning of the Second Amendment was very clear.
The term “Well Regulated” in the Second Amendment meant “Well Manned and Equipped ” in 1791 as was determined in the 1939 United States v. Miller case after referencing the autobiography of Benjamin Franklin. The concept of Government Regulation, as we understand it today, did not exist at the time. United States v. Miller also determined that the term “Arms” refers to “Ordinary Military Weapons”. American Citizens have the right to Keep and Bear, which means Own and Carry, any weapons that a soldier carries into battle. That includes past, present and future weapons. The American people still have some work to do with regard to taking back their rights.
Joseph Stalin was very fond on labeling his political rivals as “criminals”. Adolf Hitler preferred to label his rivals as “insane”. Any restrictions on the Second Amendment are a loophole for tyrants to use to disarm their opposition.
If you commit a crime and you do your time, you should be assimilated back into society with full rights. The current system in America does everything possible create return business for the Legal and Prison System. If they legalized drugs for example there would be no need for 80% of the police force in America.
It is also worth noting that Revolutionary War Hero, John Paul Jones, was a pirate and wanted criminal prior to joining the American cause for independence. Much of the same could be said for the Son’s of Liberty who participated in the Boston Tea Party.
Bruce is the man!
No one should be permitted to hold public office at the federal, state or local level who does not understand the plain language of The Bill of Rights.
Bruce, consider writing a book with your thoughts on 2A and its relation to modern society and stuff. It would probably sell and be interesting.
-D
Doh… missed the first line…
Doh? Doh? What the heck is doh? Dough? If you mean Duh, then spell it that way. Doh looks and sounds silly.
Wait, a Stephen King novel led to murder and/or mayhem? What happened there?
Jeffrey Lyne Cox, a senior at San Gabriel High School in San Gabriel, California, took a semi-automatic rifle to school on April 26, 1988 and held a humanities class of about 60 students hostage for over 30 minutes before being tackled and disarmed by another student. A friend of Cox told the press that Cox had been inspired by the Kuwait Airways Flight 422 hijacking and by the novel Rage,[2] which Cox had read over and over again and with which he strongly identified.[3]
Dustin L. Pierce, a senior at Jackson County High School in McKee, Kentucky, armed himself with a shotgun and two handguns and took a history classroom hostage in a nine-hour standoff with police on September 18, 1989 that ended without injury. Police found a copy of Rage among the possessions in Pierce’s bedroom, leading to speculation that he had been inspired to carry out the plot of the novel.[4]
Barry Loukaitis, a student at Frontier Middle School in Moses Lake, Washington, walked from his house to the school on February 2, 1996, and entered his algebra classroom during fifth period. He opened fire at students, killing two and wounding another. He then fatally shot his algebra teacher, Leona Caires, in the chest. As his classmates began to panic, Loukaitis reportedly said, “This sure beats algebra, doesn’t it?” — a line erroneously believed to be taken from Rage. (No such line appears in King’s story. The closest is when Charlie Decker quips, “This sure beats panty raids.”) Hearing the gunshots, gym coach Jon Lane entered the classroom. Loukaitis was holding his classmates hostage and planned to use one hostage so he could safely exit the school. Lane volunteered as the hostage, and Loukaitis was keeping Lane at gunpoint with his rifle. Lane then grabbed the weapon from Loukaitis and wrestled him to the ground, then assisted the evacuation of students.[5]
It’s my opinion that stephen king shouldn’t be allowed to write,I think he sux as a writer and should be out milking trees or whatever it is that people do in that part of the country.
Bruce, when will the book be released?
+1
Can we get more details on the book? Release date, etc?
I’m still writing it guys! I asked Robert to post sections here so the AI could poke holes in it and make suggestions/comments/queries that will help me improve it.
Right now I seem to be knocking out about a chapter a week so in all likelihood not before HanaRamaKwanzMas. Sorry guys!
I’m good up to the point on restoring gun rights to convicted felons. First of all, if more felons served the full length of their terms, then it would be less of an issue because many would be old men when they got out. A twenty year sentence should be 20 years in the pen, not five years plus 10 years of probation on the outside. But, we need to do that because we have too many people in prison.
Secondly, while on probation, the convicted felon, has not “paid his debt” so no guns during that period.
Finally, I see one big difference between denying guns to convicted felons and other types of restricted gun laws. In the latter case, the laws are set up to prevent a behavior when there is no proof that such behavior would ever take place. In the former case, the felon has already shown through their actions that they areccapable of certain behaviors and might do it again in the future.
What I would support would be to distinguish between different types of felonies. I have no issue with restoring gun rights to someone convicted of a non-violent felony such as embezzlement, fraud, or even robbery if no weapons or violence were involved. On the other hand, once you commit a violent crime, no guns for you, ever.
Let me further qualify my earlier response by saying that the gun would have to be used in a crime to qualify for lifetime revocation. A felony arrest simply because a guy had a gun in his possession – let’s say that for one reason or another he did not have a proper license, would not qualify for the lifetime ban. Only people who used a gun to commit a crime (or for that matter anyone who commits a violent crime using a weapon or not) would have the lifetime ban.
My old Marine Corps buddy is prohibited by Laughtenberg, and because (in Oklahoma) his offence was a class 3 felony. He had an altercation with his wife where, after he cut off the money so she couldn’t gamble it away anymore, she tried to hit him with a tire knocker. He disarmed her and left. She went to the ER, and was photographed with finger marks on her throat. He had never before had a run-in with the law; no previous violent tendencies, but had guns and a copy of “The Anarchist’s Cookbook.” He had also been a competitive shooter. The DA used this to convict him, he had two years’ probation & left OK. He was a successful mechanical engineer who had designed & built everything from oil drill bits to the C17 aircraft. Now he can’t find a job because he is a felon. And he’s no threat to society – which should be the final arbiter for prohibition: Does the person constitute a violent threat to society?
By the way, Martha Stewart is also a felon (she lied to Congress): Should SHE be prohibited from being able to defend herself?
Unfortunately your buddy had one crappy attorney. If there was sufficient evidence that his (ex) wife assaulted him with a tire iron, he should have been able to take it to trial on the grounds of self-defense and prevail. Of course, cutting her off from gambling the family money away would have gotten him accused of “financial violence”, to use the BS parlance of so-called “DV advocates”. That and having so-called “Ant-Gubmint” literature, those IDK what relevance that had to the DV issue at hand…again, you don’t want that man’s attorney! The trouble with unreasonable consequences of an issue which itself isn’t dealt with in a reasonable and certainly not just manner. I guess that those that post on this site are all screwed if we’re ever being trussed up on a phony DV charge.
Even if the DA had offered to reduce the charge to a MIS-demeanor, he still should have fought like hell in court…the LAUTENBERG amendment would proscribe his 2A for good, even though I believe Oklahoma wold otherwise not interfere after he’d served his probation.
When working in third-world countries many years ago I saw both “well regulated” and ad hoc militias play out several times where police protection was pathetically slow, ineffectual, and/or sparse.
In some cases thieves were beaten pretty severely in public places after being caught in the act red-handed. In one instance – I watched it go on for more then 30 minutes – the thief (with the stolen TV in his bicycle basket) was basically humiliated by 20+ locals including grannies and teens under the watchful eye of the neighborhood elder. The guy was shackled with baling wire and hit with switches (by the grannies), pushed around, and heckled. When two policemen finally showed up they took command and promptly cold-cocked the miscreant. In another instance, a couple teen thieves were roughed-up, tied, and held for the police in the aforementioned elder’s courtyard until morning.
Lastly, that same community had a vigorous neighborhood watch and 10 to 15 guys were summoned to arms – axe handles and flashlights – on a fairly regular basis, especially during the frequent nighttime power outages. As far as I could tell it was just the regular neighborhood guys, thugs were not at all welcome (and we foreigners were politely but firmly told to stand clear).
“The Founders believed that a well-trained, properly functioning militia was essential to protecting the nation and preserving citizens’ liberty. As time passed, however, it became obvious that in practice the militia was ill-trained, undisciplined and poorly led which resulted in the creation of a standing army. But if we no longer require a militia, does that mean that the antis are right when they says that the Second Amendment is an outdated relic that should be dumped onto the ash heap of history?”
The problem here lies not with the Second Amendment & the militias, but with the execution & regulation of the militias. As time passed, the militias became less regulated, in other words less trained & less prepared to fulfill their intended role. The Second Amendment allows the people the right to keep and bear arms, which hopefully the people will do. Owning & maintaining arms, as well as practice using those arms should allow a militia to focus it’s limited training time on aspects of military drill and tactics as opposed to the basics of safe & accurate use of firearms.
After the War of 1812, which we patently LOST (yes, it was a ‘draw’, but the UK had to deal with Napoleon Bonaparte and was going broke itself, they didn’t have the desire to re-take their upstart former colonies back, many Brits at the time were opposed to the War and would have let us take Canada, feeling “good riddance to bad rubbish” for BOTH) we had years of being left alone and got complacent. Hell, when we decided to kick Mexico’s hiney back in 1846 over “Tejas”, we had no trouble raising armies of volunteers from the various militias…even the Mormons, whom otherwise despised the Federal Government (and this before the Polygamy thing was an issue), sent the “Mormon battalion”, which saw no combat but did occupy present-day San Diego…the basis being not unlike how our National Guard was created…since the law prohibited militias from being sent abroad, their members enlisted in masse or accepted (or reactivated, in most cases) an Army commission while still retaining their status as militiamen. Hard to measure the ‘effectiveness’ considering whom we went up against. We do know that some 14 years or so later, when “Dishonest” Abe federalized the state militias into the Grand Army of the Republic, their performance was decidedly indifferent if not downright abysmal, as so many Army officers were Southerners, and, like Robert E. Lee, resigned their commissions and served in the Confederate Army once their respective states seceded.
However, the unorganized militia does pose a huge deterrence to any would-be invader, as the supposed words (the documentation being sketchy at best) of ADM Isoroku Yamamoto, who in contemplation of invading the USA on the West Coast, declared that to win they’d have to march across the entire country to “dictate terms of peace in the White House”, all the way being confronted “by an American with a rifle behind EVERY BLADE OF GRASS”. The Admiral had done post-graduate work at Harvard in the 1920s and spoke excellent English, he was well familiar with American values and customs.
YOU’RE WRITING A BOOK?
Do. You. Have. A mailing list?
I disagree with Mr. Krafft’s idea to extend gun rights to felons. I think further research will show that from colonial times, felons and the insane were prohibited weapons. However, I don’t wish to argue the point.
I will certainly buy Krafft’s book as soon as it’s available, b/c his logic, scholarship, and research are some of the best I’ve ever seen on the Second Amendment. His arguments are compelling and easily understood.
This is one of those excellent efforts that will help pro-gun folks convince fence sitters and sympathizers of our cause who haven’t thought much about it of the rightness of our position(and maybe some open-minded antis, if there are such critters).Congratulations and thank you Sir!
Excellent article! More details on the book, please.
Great article! Although I have some reservations about the guns for all felons thing, I agree with everything else wholeheartedly and I recognized the idea of all felons being allowed guns was out forth as personal opinion. This is something many people need to understand, not just for the 2nd amendment but for the whole Consitution and the Bill of Rights. The idea that so many people don’t have anything close to a good idea of the contents and their purpose of those two articles is shameful.
Good job, Bruce. Preaching to the choir again, though.
Most of this article is predicated on the ability for people to read and comprehend what they read. Seems ironic that you would write an article to argue this point. Your efforts are an exercise in futility because those who cannot understand the simplicity of the 2A are not capable of understanding anything more complex, such as your explanation of it.
The problem is not a matter of misunderstanding the 2A. The problem is the conscious choice to not understand it.
It was understood to include all manner of cannon, some of which were privately owned at the time, or kept by militias when taken from the reds. Adjusted for inflation, that would translate to at least fully operable tanks in the present. Remember, if the government decides to go all in on the tyranny, they won’t be doing the people the favor of using 18th century technology. If I remember correctly the Constitution was at its core supposed to provide an advantage to the people over the government.
Not to mention stuff like the girandoni and other marvels the left seems to think came about the same time period as color tv. We were meant to be able to stay neck and neck in the arms race.
Sounds good to me but who can afford an M1A1 Abrams tank? or for that matter, an Apache gunship? We’d have to hock not only mine, but your’s and quite a few other guy’s family jewels! Lol
Just get the new CMP Sherman tanks! Not quite as up to date, but that cannon on the end docent seem outdated when it’s pointed at you!
Restricting small arms, let alone private ownership of MBTs, on the basis of technology goes exactly against what was practiced when the 2A was written. The Pennsylvania Long Rifle out-ranged the British Brown Bess, while inferior for the massed volleys of drilled infantry as practiced by the British Army, it was exactly what the Colonials and especially the irregulars, or MILITIA, practiced in firing from cover and SNIPING. To say that the Founders could not have envisioned repeating rifles or even breech loaders is to be utterly ignorant of firearm technology development. Those devices were well-known but weren’t yet practical or easily manufactured. Moreover the big thing that makes even breech loaders, let alone semi-auto and full-auto weapon practical was the development of SMOKELESS POWDER. A charge that wouldn’t readily foul the mechanism is what made magazine-loaded repeating rifles and pistols practical, developments in metallurgy and manufacturing made them cheaper and more readily available to the public and militaries and policing agencies like.
One may as well say that the invention of computers, word processing software, the Internet, HTML, and a search engine make it imperative for the First Amendment to be subject to “reasonable” restrictions or “permits”. And there are those that already HAVE.
Pertinent statements with regard to the purpose and intent of enumerating certain Rights in the Constitution of the United States:
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.
[ Excerpt as follows: ]
“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….”
Amendment II “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.”
http://archives.gov/exhibits/charters/bill_of_rights_transcript.html
So for those of us that have passed our 45th birthday, we are no longer considered part of the militia? Hey, I might be old, tired and fat and not as good as I once was, but I’m as good once, as I ever was. I’d hate to think that this 45th birthday thing could be used as a loophole for the anti’s to come knocking on my door asking for my “arms” to be surrendered since I’m too old to be part of the militia by the definition given of all able bodied men between 18 and 45.
Don’t feel left out, Joe. The “unorganized militia” or “draft pool” will vary, the Gov’t adjusting the qualifying age range to suit the needs of the country.
I’m just wondering when they will include our mothers, wives, and daughters as part of the “unorganized militia”.
I think when this was written,it was a way to make sure old men weren’t being pressed into service,a liberal would agree that what they meant was men 45 or older can’t be trusted with firearms,it would be another group they could disarm.The government is trying that angle where they can put everybody into a certain category and then make it illegal for that category to own firearms.I’m sure they would have taken volunteers 45 or older if they were willing and able.If they had a law like that now,I would have to volunteer being that I’m over 45 but if it were a righteous cause,I’d be the first in line.If I were alive and over 45 during the civil war,I would have volunteered to fight for the Confederacy,I’m surprised that to this very day,the US government allows Southern White men to own firearms.If they outlaw guns I would be willing to bet that Southern White men will be the last to have guns because we aren’t really happy with the federal government to start with,they have really pissed us off over the last six years.
I have been studying this Militia thing for a few months, and I have come to several conclusions.
First: Duties of Citizens.
1. Participate in the political process (at least by voting)
2. Stand to Jury Duty.
3. Participate as a member of the Constitutional Militia.
It doesn’t matter how old or young, able or infirm: EVERYONE is responsible to participate, and should do so as they are able. After all, no modern organization can exist without a “Support Tail.”
Second: Functions of the Militia:
1. Repel foreign invasion
2. Put down rebellion
3. Assist with natural disasters
4. Be a check against government tyranny – by government at any level.
I live in Washington State – and we have an (unconstitutional) anti-militia statute: No one may form a “private” army and “parade” them. The statutory “unorganized militia” is the “State Guard” which is kept toothless. Anyone who attempts to revitalize the Militia gets stepped on.
One sure way to bring back the needed Liberties in this country is to Revitalize the Constitutional Militia; to repeal “anti-militia” laws; to pass legislation which recognizes and empowers the Citizen Militia, which punishes government officials who punish legal Militia groups; which promotes liaison between Militia Groups and County and State authority; which requires that Militia units, to be recognized, must adhere to standards of loyalty to state and federal constitutions, to be inclusive (no one excluded because of race, religion, ethnicity, or gender), to meet standards of training and equipage.
Our country would be better prepared for disasters (natural AND man-made); and likely we would need fewer instead of more federal and local police in order to achieve local, state, and national security.
Bruce: I am interested in your book.
There should be an amendment to the constitution that states,this constitution does not apply to citizens that don’t live up to their responsibilities as citizens of the United States.A list of responsibilities should follow this statement.
The main responsibility of a public servant/politician holding public office is to uphold the constitution,if these public servants,police officers,teachers,public office holders,soldiers,are convicted of not upholding the constitution,they shall be barred from holding a public office or a job in any of these fields.
The problem with citizens is that they become apathetic and dishonorable,they choose to put their personal lives before the life of the country,they want all of the freedoms but none of the responsibility that comes with being a citizen of the United states.If this were the case,there would be millions of liberals out of work because they believe the constitution is outdated and “unfair”.They also choose to ignore the constitution because it doesn’t fit with their system of beliefs,the main reason this country became so great was the constitution,if we allow people that disagree with it to take power and ignore our rights guaranteed by the constitution,this country will cease to be great.
The anti-militia laws are not unconstitutional. A key reason the Constitution was drafted was to protect against illegal uprising like the Bundy Rebellions in Oregon and Nevada. All of those guys should be tried as traitors to the United States. Look up the Shays Rebellion and educate yourself. If you actually read the Constitution, in Article I, Section 8 the Constitution clearly gives Congress the power to regulate the militia and the individual states the authority to manage the militia. Any militia formed outside of those guidelines is illegal and lawfully should be suppressed.
The Bundys were exonerated.
One more thing: Militia catching a robber, a looter, a murderer and turning them over to the county sheriff does not amount to “vigilantie justice.”
Excellent work. My only (minor) beef with the essay is the lack of attention given to the influence of the so called incorporation doctrine on interpretation (and application) of the Bill of Rights. Not only within the courts, but also within the minds of the common People. I hope the author has plans to address the issue in another chapter of the book. Meanwhile readers may be interested in reading Raoul Berger’s excellent book on the subject – Government by Judiciary, The Transformation of the Fourteenth Amendment.
“State” doesn’t necessarily mean a particular geographical or political entity.
Here’s the first google hit on “define:state”:
=====================================
state
/stāt/
Noun
The particular condition that someone or something is in at a specific time: “the state of the
company’s finances”.
…
Synonyms
noun. condition – status – situation – position – country
=====================================
ergo, “a Free State” means a condition, status, situation, or position of Freedom – it has nothing to do with government at all.
I’d like to see a president deliver a “State of the Union” address where he says, “So far, the state of the Union is still Freedom!”
But this will be as hard to promulgate as the fact that all of the mass shootings have taken place in “gun-free” zones, and will be totally blanked out by the grabbers/tyrants.
Bruce, you posted this article in November 2012 as part of an upcoming book?
Have you published the book yet?
It’s July 2014.
You are an idiot. The word “infringed” as you point out in your own article meant (in 1787) that the right to keep and bear arms should not be broken. Simply putting a limit or a regulation or a registration on it does not break that right. Same thing as voting – you have to register to vote and in some states provide a government issued ID. That (according to the courts) does not violate or break that right. SAME THING.
Better be careful, kitty Kat. Soon some politician may want to make public slander a felony, and then where will all your supposedly goverment granted rights end up? As a matter of fact, voter registration was instituted to help prevent ballot stuffing. Your argument is invalid, but please try to be civil if at all possible. I mean, unless you are still in the fourth grade. Lol
Another valid point the author made was that these rights are not “granted” by the goverment. They are granted because of your United States citizenship. The Constitution (and subsequent Bill of Rights) have been written to guarantee they could not be taken away. You may not like it or agree; but that does not make it untrue. There are even states (Pennsylvania to be one of them) that find it unconstitutional for registration records of firearms to be kept. Although in their case, the State Police still somehow mandate registration of handguns iirc
” Soon some politician may want to make public slander a felony…” My, that sounds a lot like your buddy Trump!!!!
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The author gets all hung up about the various categories of laws. He suggests that the primary purpose of mala prohibita gun laws isn’t to punish bad behavior, but to prevent it, and that such laws may have some deterrent effect but are largely useless. He goes on to imply that the only appropriate laws are mala in se laws, which are to punish people who violate them. The implication here is that punishing people who commit crimes should be enough to deter people from doing so, and that such laws should be sufficient to achieve the stated goals in the preamble to the Constitution.
But guess what? They don’t, by any stretch of the imagination. Following the recent horrors in Las Vegas, Sutherland Springs, TX, and now in Parkland, FL, how can ANYONE feel secure with the “blessings of liberty”? There probably isn’t a kid above the age of 10 who doesn’t feel some misgivings about going off to school.
Virtually all mass shootings end in “sufficient punishment” of the perpetrators, usually by their ending their lives with by their own hands. How is this “punishment” useful to the rest of society, let alone the families of the victims?
At some point there has to be some trust in the predisposition of the government to “serve and protect” – something found on the logo of many, if not most, police departments. This notion that we need to be able to arm ourselves with any damn arsenal that we might want to defend ourselves against a tyrannical government is as crazy as the people that at least some of us think should not have access to guns in the first place. And yes, there needs to be something done to PREVENT people judged as likely to use firearms against others from doing so. There will never be a guarantee, but as we’ve seen in most first world countries such as Scotland, Japan, and Australia, taking common-sense actions to limit such access has made a significant difference in the reduction of firearms-related deaths, and leaves the U.S. as a horrific outlier in the risk of becoming a victim of assault by firearm – if not completely cutting one’s life short, than most likely sustaining a life-altering or crippling injury significant worsening one’s quality of life going forward.
If you believe that your parsing of the language of 2A means “unfettered access to any and all firearms”, then for sure 2A needs to be repealed, or significantly altered. As you interpret it, 2A is completely inappropriate for most areas of the country with exception of truly rural areas. Instead of promoting “freedom”, it is more and more promoting fear.
If, as Trump says, America were truly great, NO ONE would feel the need to have guns around at all.
You completely missed the point, Mark, and end it with gratuitous Trump-bashing, so my guess is to where you’re coming from.
The whole point of the “Malum Prohibitae” versus “Malum Pe Se” is in the case of former, WHY prohibit something if (1) said prohibition has no realistic effect to prevent or curb the intent misbehavior and (2) the prohibited behavior is not of itself something that reasonably poses a proximate danger. To wit: after the 1995 incident in which a former Cal Army Guardsman broke into a San Diego area armory and stole an M60A3 tank, which fortunately had no main gun rounds or machine gun rounds on board, but the wayward thief was able to wreak a hell of a lot of havoc before he finally got the tank stuck and was shot when he refused to give up. Do we prohibit people from collecting surplus tanks because with their bulk and armor one can stir up some ‘serious shit’? Of course not. Likewise we don’t overly regulate bulldozers just because some nut armored one up and went on a suicidal rampage.
Matt, there is NO reason, let alone rule of law, especially re: the Second Amendment with your so-called “reasonable” measures to restrict or prohibit that which you improperly deem “assault” rifles. The AR-15 is a semi-auto rifle firing a .223 round that has the same hitting power as the .22 rifles that I gave to each of my kids when they turned 12! It has styling features that give it an appearance much like the M-16s that many have carried in military service, but it’s not the same weapon and, as one Marc Robinson of Winston-Salem remarked in his impassioned speech to the local city council, only a FOOL would go into combat with one! BTW, the term “assault rifle” was coined by Adolf Hitler for the German StG 44, the first mass-produced and issued select-fire weapon, in his passion to give examples of “Aryan Superiority” grandiose names. Matt, given that several millions of AR-15s, let alone other semi-autos are ALREADY in existence in the USA, it’s quite unreasonable that they could and WOULD be easily rounded up, even if the flagrant constitutional problems with a nationwide AR-15 ban weren’t resolved in the gun-grabbers favor. Worst of all, how could it be expected that ANY of the tragedies could actually be prevented? Either the subject didn’t meet the criteria of then extant laws, nor of even TODAY’S laws, to proscribe firearms ownership, or the perpetrator was clever enough to ILLEGALLY get his weaponry anyway. No laws would have stopped Adam Lanza from doing what he did at Sandy Hook, and the ability of any legal system to readily identify psychopaths BEFORE they go off on a rampage has never been effectively demonstrated. What HAS been demonstrated, time and time, again, is that a “good guy” also with a GUN, whether an LEO or a “civilian” (which LEOs in their capacity ARE) is the best way to deal with these outbursts. Sure the police can respond in 15 or so minutes…to draw the chalk lines around the victims. Never mind how many robberies, rapes, and/or murders NEVER HAPPEN because the perp assesses that his intended victim may be armed and chooses other prey?
None of Mr Self’s above legal theories begins to explain why the U.S. is much worse off than virtually all first-world countries in terms of gun violence statistics. But we do know that 1) there is a significant difference in the number of guns in the hands of the average civilian, and 2) regulations in these other countries make it much more difficult to qualify as a legal gun owner.
This author is grossly in error in many of his suppositions. I could provide logical arguments and evidences against his fallacious interpretations; but that is all academic at this point. They doesn’t really matter as the Supreme Court has made its ruling. And unless something remarkable happens to correct the situation, we are stuck with the anachronistic modern interpretation of the 2nd Amendment as an individual right and not as a protection of the states’ right to form and maintain militia forces. A right that is preserved in the National Guard Units and State Defense Forces of today.
However, his ultimate fallacy is in his supposition that restricting guns to the mentally ill and criminals is not an effective tool. This is very short-sighted and erroneous thinking. Setting aside the obvious benefits of keeping a gun out of the hands of a manic-depressive individual and domestic violence perpetrators, I will instead focus on the restrictions for convicted felons. The benefits to this law are clear and proven.
Clearly, laws that forbid convicted felons from owning a gun do not prevent all crimes committed with a gun by a convicted felon. And in the current climate created by the NRA and gun lobby it is easy for a criminal to get a hold of a gun as hundreds of thousands (that we know of) of guns are stolen or go missing every year. Due to a lack of competent regulations and restrictions those guns perpetually add to the pool of weapons in the possession of violent offenders and criminals.
Where laws restricting convicted felons are essential is in regards to the ability to proactively fight crime instead of waiting for an actual crime to be committed. If a restricted individual is found in possession of a gun, then the police can take them in and charge them for illegal possession of a firearm. This has helped prevent many crimes that would have been committed with the use of those firearms. This is one of the key laws that has contributed to a reduction in violent crimes since the 80’s and 90’s. Many criminals have been taken off of the streets on weapons violation charges …
The operative clause of the 2A states, the “Right of the PEOPLE to keep and bear arms”. If the Founders intended for the states to have the right to form and operate a state militia, that’s what would have been written. You conveniently also IGNORE the copious amount of Federalist and Anti-Federalist contemporary literature which explicitly mentions the RTKBA as an INDIVIDUAL right.
Fortunately, in overturning the District (of Criminals) handgun prohibition, the SCOTUS ruled in Heller in 2008 that indeed the 2A is an INDIVIDUAL right.
Well argued Douglas, I am definitely going to share this article of yours on line, thanks for your timely legal scholarship, so relevant right now in 2023.
As for the “Purist” troll above, as I have told too may fake “liberals”, another croaking of the slaves to the ideal of the divine right of kings and priests over humanity.
I’m working hard to show modern liberals that they need to stop repeating the arguments of the “ancien regime” conservatives of the dark past. The right of the citizen [or subject} to defend themselves, ‘even against the king himself’, is a liberal value.
I’ll be posting this article on my Facebook page [under Thomas Ellingwood] and see how it goes over.
Thanks again!
You’re going to need to take apart his first section if you want to discount it. His second section, which he stated was personal opinion, and which you seem to take most issue with, is just that, personal opinion. I wouldn’t get too worked up about it. Plus, it’s obvious you are missing his point. Emotional arguments and accusations without substantive reasoning doesn’t an argument make.
If you want to restrict a natural right by force of government you’re going to have to delve into a point by point refutation of the first part. That the Supreme Court was in agreement with much of the this authors first section is telling. It would behoove you to also refute the Supreme Courts ruling because of the commonality and relation of the argument.
Or go away.
Regulated means adjusted and directed according to rules. It means to be governed. An alternate word for a regulator is a governor. The regulations are described.
It does not mean to function well.
A company of fire men that was well regulated means they are well disciplined, trained, and organized, that they take orders and have a trained response, which produces effective fire elimination. They function well because they are well regulated. Do not confuse the two things.
Regulations are not new. It meant the same thing then as it does today.
The constitution literally explains how the militia is regulated by the congress and state. Disciplined, armed, organized by congress. Trained and officered by the state. So whatever you think militia means, they are regulated by the government, and defined right there in the constitution.
Regulated has never meant to be good at something, it means adjusted according to regulations, but only in a certain sense of the word adjusted. Watches have regulators that keep them from going to fast. A regulator adjusts their speed. Keeping good time and being regulated are related but different things.
A militia is not simply the people, it is something composed of the people and only consists of those enrolled in the militia. Unless it is a militia formed by the government it does not conform to the meaning of the word in the second amendment. The government chose to make the militia all able bodied white men of certain ages. It can decide to make it whatever it likes but it would be constrained by the second amendment, not to violate the right people have always had to form a militia whenever one was needed. That is the point made by the second amendment.
The fact that we have an individual right to arms or that someone can have an unregulated militia is not really the point of the second amendment. They are certainly not invalidated by it. While those are true and fine things, they are really outside its scope.
The point, as I said, is to preserve the militia. It was incredibly important because most republics had fallen apart because they were taken over by armies marching into the capital or armies being used to restrict the other rights of the people. It is all well and good if you believe we need guns to stop this, it will take a more organized approach than simply having guns though. Thus the term, “well regulated”.
It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.
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