Doug

Exerpt: A Treatise on 2nd Amendment Rights in the 21st Century

July 10, 2014 by
Filed under: Political 

[This is an exerpt (the beginning of Chapter 1 and Chapter 2) from a book I was working on which I will most likely not have time to complete.  I thought people might still find these sections informative so I wanted to make them available here.]

CHAPTER I

Introduction

 

“In order to form an immaculate member of a flock of sheep one must, above all, be a sheep.”- Albert Einstein [Ideas and Opinions by Albert Einstein (1954), where they appear in the section “Aphorisms for Leo Baeck.”]

 

Has there been a shift away from the Constitution in regards to the powers of the government and rights of the people, creating an increasing threat of government tyranny and oppression, while subsequently restricting and prohibiting the right of the people to bear arms through unsubstantiated claims and circumvention, such as ‘assault weapon’ semantics and a ‘tradition’ of hunting?  This book intends to address that question.  First, let me start off by saying that I am not currently, nor have I ever been, a member of the National Rifle Association.  That statement  is not intended to either denounce or support the NRA in any way, I just want to be clear that what I write in the following pages is not being skewed in support of the NRA, but is what I find to be legitimate facts pertaining to the 2nd Amendment in as unbiased manner as possible (I can’t seem to stop myself from presenting the occasional smart-ass comment now and then while presenting facts though, so if you truly feel the comment is not reflective of the facts at hand then by all means refrain from LOL and feel free to redact my sarcasm from the overall analysis as it will not change the nature of any conclusions.)  I am not involved in the military or law enforcement, nor do I have any type of obsessive fascination with either of those occupations; again I do not intend to denounce the actions of those brave men and women who defend our country collectively or its citizens individually in those capacities.   Other than dictated by U.S. law, I am not a member of any militia.  I would also like to say that I am not a hunter, nor am I a vegetarian or vegan either, and once again I do not intend in any way to denounce or support those who choose to hunt for food and the other resources it can provide, nor those who denounce the use of that food or resource.  I do not compete in firearms related sporting events and have never done so.  I am not a felon, a fugitive, a drug addict, a mental defective (though I can’t deny that my wife on a number of occasions has attempted to form such an argument), I am a U.S. citizen and have not renounced my citizenship, I am subject to no court-ordered restraints and I have never been a party to domestic violence, let alone convicted of it; so I have no secret agenda in writing this to somehow argue I should have rights ‘restored’ by any conclusions this writing ultimately makes.   I do not subscribe to any organized religion, and since the definition of ‘deity’ includes the preternatural where there is presumed to be a rational explanation for the unknown phenomenon such as being nothing more than an advanced life form, and I believe that in time all truths can eventually be discovered and explained rationally, then by definition I am also neither an Atheist nor Agnostic.  I think it is ridiculous that I even have to address this next issue, but since it has been a documented argument as to why people desire to own firearms, I begrudgingly have to concede that genetics have been favorable to me and I am modestly endowed above the statistical average, so I do not suffer from Penis Envy. [Barry Bruce-Briggs.  The Great American Gun War. 1976. The Public Interest 45:59] I am neither a Democrat nor a Republican, and I evaluate my positions on matters of concern on a specific issue by issue basis.  Though I have had experience with firearms since I was a youth, I did not feel compelled to own a firearm until I was 43 years old.  All these points of things I am not a member of, being made to show that my life does not revolve around the use of firearms, and I have not been programmed to be of any specific belief regarding firearms due to being a member of any subset of our society that appears to profess an ideology as a collective whole.  Therefore, most importantly what I am not, is a sheep. [A deity is a being, natural, supernatural or preternatural, with superhuman powers or qualities, and who may be thought of as holy, divine, or sacred. The preternatural or praeternatural is that which appears outside or beside (Latin præter) the natural. In contrast to the supernatural, preternatural phenomena are presumed to have rational explanations that are unknown.[Atheism is, in a broad sense, the rejection of belief in the existence of deities. Agnosticism is the view that the truth values of certain claims—especially claims about the existence or non-existence of any deity, as well as other religious and metaphysical claims—are unknown and (so far as can be judged) unknowable.- all Wikipedia] 

The sad truth is that most people have become sheep.  People no longer want to think, they want to be led.  Many in our society seem to have lost the concept of critical thinking, and cognitive ability for them has atrophied.  They want their government, their ‘God’, their investment broker, their therapist, their television, their computer, their peers on Facebook and sometimes now it seems even their chihuahuas, to think for them.  And why not, that’s a very easy life to have in some ways isn’t it, when you can blame the outcome of your life on other people’s decisions and sidestep any personal responsibility for the present state of your own existence?  Even when life is hard, it’s just not your fault.  I’ve never quite understood the world those people choose to live in, but then again I’ve never found the sight of a sheep’s ass all that appealing.   There is also a more subtle version of the personal responsibility problem, such as when someone sees a random and unverified news article, maybe even a viral Facebook share, and then comes to a conclusion from what they’ve seen with no further research.  Are they presented with all the facts or even any legitimate facts at all?  Often not, yet they believe they have made an informed decision and would adamantly deny they were staring at the tail of another lamb.  On many occasions, these seem to be the very same people, after having taken someone else’s word for something as mere fact, will not change their belief system even after they are shown the actual facts do not support their belief.  They will go on and on finding one illogical reason after another as to why their belief is still correct in spite of all the contrary evidence…and yet they never truly formed that belief on their own to begin with, it was given to them.  Apparently our 40th President Ronald Reagan was notorious for holding a belief long after it had been proven wrong and even embellishing the facts to justify his belief. [find reference from Drift]  The problem being, that belief has somehow become a part of ‘who they are’ as a human being, and we’re just not supposed to say things that make people question their own belief systems. 

We seem to have become a society who through some type of misunderstanding of the 1st Amendment has decided that because someone else has the Constitutional right of Free Speech it is somehow politically incorrect to point out when that speech is bat shit f’n crazy.  The right to express your opinion is protected by the 1st amendment, but contrary to current ideology, the invalidity of your speech has no such protection.  In fact, in many cases like libel and hate speech, that right is specifically denied.  It becomes a little more muddled when someone says they’ve personally spoken to Jesus Christ or are full of Thetans.  They are well within their 1st Amendment rights to say so and even for them personally to hold such a belief, but it is somehow politically incorrect to question the sanity of those people, as if the 1st Amendment also protects them from being diagnosed as delusional and a potential threat to society.  I mean, who knows, maybe they really are telling the truth, right?  What is bizarre, is that once you say you ‘are’ Jesus Christ or the reincarnation of L. Ron Hubbard’s thetan, you are deemed to be suffering from a psychosis, even though that is entirely in line with the beliefs held in the previous statement and would be confirmation that those beliefs are at least potentially sound.  How is it that we can hold beliefs that appear to be virtually impossible and in defiance of all known facts and conclude that is sanity, but when someone comes along and claims to be proof of that which we believe, at that point we finally conclude they are insane?   If pointing out when a belief may not be supported by facts is insensitive and thus politically incorrect, what false beliefs start slipping through the cracks as accepted truths…doomsday prophecies, witches in Salem, occupy Wall St.?  Does the 1st amendment protect against delusions in speech, does it protect against any portion of religious beliefs that might be deemed delusions, or does calling out delusions impede the free exercise of religion or abridge the freedom of speech?   This is something people need to decide, and though the topic of this writing is not about the 1st amendment, maybe our acceptance of certain, let me call them “quirks,” in society perpetuate belief systems that make a lone gunman conclude they are justified in killing innocent school children, thus leading us to debate the 2nd Amendment by subsequent necessity?  If I see false information being spread and can provide the facts to dispute it and take no action towards doing so, am I any less responsible for the persistence of the misinformation or delusion through society than the person from where it originated?  Have we become so lackadaisical in regards to faith vs. fact, or logic vs. emotion, that many in society no longer have the ability to judge fiction from non- fiction, or sound logic from spin or pure fallacy?  Are we, as a society, enabling some people’s false beliefs and therefore contributing to the misinformation problem?        

Misinformation appears to be a major problem in society.  I’m not suggesting it is a new phenomenon by any means, but recent technology has increased the spread of it exponentially.  With the speed at which false propaganda can now be spread, one might argue that we need to be more diligent in verification of the information, but that does not appear to be the case.  Facebook certainly has not helped the situation any.  People seem to hit ‘share’ faster than their brains can think to ‘think’ about what they are sharing.  In my opinion, misinformation is a virtual plague on our society…garbage in, garbage out, so to speak.  Excluding organized religion, nowhere does this seem more present than in gun rights arguments in the United States, which brings me to the reason I decided to write this.  Though somewhat out of chronological order, the topic of why I began to look at 2nd amendment rights will follow.   It is no secret that gun rights have again been a major issue in the U.S. for the past few decades, and to some degree maybe they always were.  When I first started to inquire as to what the actual current interpretations of the 2nd amendment were, I found so much conflicting information that I couldn’t make heads or tails of any of it.  Somewhere along the line it seemed someone had the “baffle them with bullshit” philosophy, and much of that bullshit stuck.  I found ambiguous and conflicting references to court cases, I found conflicting information of pro and anti-gun rights forums and conflicting quotes from those who signed the Declaration of Independence and those considered the “Framers” of the United States Constitution.  What I found is that there is an abundance of information out there that you might call ‘a stretch’ at best and a blatant lie at worst.  The latter, however, is what initially left me dumbfounded.  Time and time again I would see these quotes by Framers of the Constitution, some extremely pro and others extremely anti firearms (or militia etc.), and wonder how the same person could hold two dramatically conflicting ideologies at the same point in time…and of course they typically didn’t.  I had a hard time finding quotes that were legitimate and had any valid reference.  Many quotes that had a valid reference had basically been put together by someone for a specific intent and had been so chopped up and pieced together with ellipses that when you finally read the whole quote it wasn’t even about the issue at all.  Yet these were the quotes scattered around firearm discussion sites adamantly supporting or denying the intent of the 2nd amendment.  There were other quotes I started to notice that appeared to make certain arguments as well.  I had to find a gunsmith to install tritium sights on my wife’s handgun.    When I walked into the gunsmith’s shop, the first thing I see is a 2’ x 3’ poster with a picture of Adolph Hitler and the quote dated 1935; “This year will go down in history. For the first time, a civilized nation has full gun registration!  Our streets will be safer, our police more efficient, and the world will follow our lead into the future!”    Wow, that makes a lot of implications about the need for citizens to retain their gun rights.   Maybe Hitler at one point did make some kind of similar comment, there’s just no real way to know at this point, but taken as a whole and in context with the intended meaning, it is total bullshit.  The date doesn’t make any sense in correlation to the intent of the quote, the documented legislation in Germany doesn’t add up before or after the date of the quote, and the most recent legislation in Germany under Hitler’s control actually eased gun restrictions.  I’ll let you research this one yourself, it should be enlightening.  What an argument it would have made for the right of the people to be armed and maintain militias for the purposes of insurrection against a tyrannical government if it were true though, huh?…and thus pro gun rights supporters still take the bait and spread it like wildfire.  Even as I sit here and write this, I had a friend post something on Facebook about gun rights, to which I made a comment regarding statistics I have in front of me which pertained to machine guns and their specific comment.  A woman immediately came on and started misquoting past legislation, saying machine guns were banned in 1934, and since there are actually very few reported machine gun homicides since that time, gun control is confirmed to work.  As I continued to correct and provide references for her misstatements, in one case I actually found the very reference she was copying and pasting where she had intentionally removed the 2 lines that would have killed her own argument and verified mine, she resorted more and more to passive aggressive responses and suggested that I must have no life since I had more time to do research than she did with an overall tone that I was somehow an asshole, because she couldn’t accept that her facts were clearly being discredit and were not in line with what she ‘wanted’ the facts to be.  It is because of an abundance of people who argue “what they wish the facts were” instead of “what the facts appear to be” that I finally decided to undertake this task.  I started this project as unbiased and open minded as I possibly could and honestly wanted to learn, once and for all, what was truth and what was fiction in what I had previously been reading.  By the end of my research, I have to admit that I noticed some definite trends. 

So why did I become interested in aspects of the 2nd Amendment as they were intended, and as they stand today?  A little over a decade ago I decided to make a career change.  I had always been fairly good at un-spinning media stories and seeing trends and patterns.  To make a long story short, as pretty much everyone is aware of the stock and housing bubbles which were created due to the investment mindset of people at the time, I decided to educate myself in all things investment related.  I went back to college and took a number of classes on Economics and International Trade, and began to consume anything I could get my hands on related to such a mindset.  This included a range of Psychology books, Statistics and Probability Theory, Military Strategy, History, Game Theory, Sociology, Logic, Venture Capital, Business Law (etc.)…anything and everything that could help decipher trends in global investments.  Needless to say, I acquired at least a general background in a lot of related areas.  It was the peripheral information to investing where I seemed to learn the most about the actions governments and members of society take at certain points during the economic lifecycle of a nation.  Other than a recent hiatus, my company had a contract providing foreign exchange services for another firm for roughly the past 5 years.  I was constantly in front of the news and I started noticing, what at least from my own perception, appeared to be some specific patterns both from a shift in political ideology toward accepted extremism and what appeared to be legislation that was questionably unconstitutional.  At first, my concerns were only economic in nature and noticing a trend towards witch hunt mentality such as after the bursting of the housing bubble, where nobody wanted to take responsibility for their own actions and legislation was acknowledging that argument and being built around that mentality.  I had mentioned to someone in roughly 2006 that social unrest would be the new ‘bubble.’  As it appears I was correct, and social unrest is having more of a direct impact on societal trends, my focus started to shift slightly.  Having read how many of these particular trends in society end horribly, time and time again throughout history, I began to take serious notice.  It appeared to me at the time that the 2nd Amendment right applied to the importance of personal self defense such as a direct personal attack or when the local community riots and loots its own neighborhood, to foreign invaders when the military is not sufficient, and also to the military itself when it has been misappropriated against the people it was intended to defend.  Though it may be argued that insurrection was not the sole intent of the 2nd amendment, we were clearly coming off of an event that shaped our nation that would suggest it was securing the means to choose that approach if the Republic had failed the people and that solution became necessary.  With this initial mindset, I began to feel it was not only prudent for self defense, but also a responsibility as a citizen of the United States, to acknowledge my 2nd amendment rights and not only acquire a few firearms, but take the training necessary to use them properly in case things should happen to go horribly astray.  I began to wonder if the facts revolving around the 2nd amendment really provide us any or all of the rights mentioned above.  It was at this point that I started noticing the conflicts of information in 2nd amendment arguments I mentioned earlier, needless to say exacerbated with emotional charge after a couple of recent mass killings, and decided to do the research myself to see what I could find. 

The more I dove into the research, the more I realized looking at recent court cases and legislation did nothing but confuse the problem further as everything referenced or denied something that came before it, and many pieces of legislation just didn’t make any initial sense until taken in context with a specific event that had happened at the time which led to its creation.  It finally became clear that the entry point into the discussion of present day 2nd Amendment rights is located in 17th century England.  Any full evaluation of the 2nd Amendment today would need to begin during the monarchial rule of the Stuarts in England, most specifically with events leading to the overthrow of King James II.  By the same token, no evaluation would be fully complete unless ending with some indications of the ideology of the current President of the United States, Barack Hussein Obama II (no implications intended regarding the similar suffix of both men) and the current administration.

Hopefully looking at the evolution of interpretations of the 2nd amendment in chronological order, and in some cases interpretations of the Constitution itself, will be enlightening to our cause.  There seems to be little dispute that the Bill of Rights attached to the United States Constitution was inspired by the English Bill of Rights of 1689.  We’ll start by looking at what led to the English Bill of Rights initially and the parallels between it and the U.S. Bill of Rights.  We’ll also look at references to the Laws of England written prior to the Framers of the Constitution [continental congress?], which may have had some impact on how they adopted some of the English Laws while avoiding some implementations of it, when creating the U.S. Constitution and the Bill of Rights which was subsequently attached.  There is sufficient correspondence from the time to look at the ideologies of the Framers of the Constitution, in their own words, and see the topics where there was some debate and those where there was general consensus in areas such as standing armies, militias, federal and state powers, the concept of insurrection and the right of the people generally to possess arms.  We’ll take a look at court decisions that have had some impact on 2nd amendment rights, how they were interpreted and discuss what relevance they really have.  There are a number of pieces of legislation that have been passed over the years, many in regards to specific events that took place, and we’ll see if the legislation was in line with the 2nd amendment ideologies of the Framers, interpretations in standing court precedent at the time, or possibly just blatant attempts to restrict firearms from society.   There are a number of military conflicts that have changed the course of 2nd amendment rights as well; we’ll insert those in their proper chronological order.  By the end of Chapter 2, we should have a good understanding of the 2nd Amendment and the main issues being debated.

Though I have somewhat facetiously titled this book as a treatise, I will stick to documentable references as much as possible.  There is an element to this book that will remain somewhat informal as I want it not only to be informative but also a pleasurable experience which is not so clinical that you feel like you’ve just had a pap smear or prostate exam. 

 

 

CHAPTER II

Historical Progression of the Second Amendment Ideology

“To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.” – Richard Henry Lee [Richard Henry Lee. Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)] 

 

As George Santayana once wrote, “Those who cannot remember the past are condemned to repeat it.” [Santayana, George; Life of Reason, Reason in Common Sense, Scribner’s, 1905, p. 284]  It could also be suggested that those who are intentionally misinformed about the past are being manipulated to repeat it.  Having found a lot of misinformation being spread regarding the Second Amendment and the current debate on gun control, I felt it necessary to do some historical research.  I’ve found a number of events in history which have specifically changed the course of gun rights over time.  Some of those events are directly related to the right to bear arms, such as Supreme Court cases and specific legislation regarding gun rights.  Others are more indirectly related which ultimately create shifts in perception by either the government or the people themselves which subsequently led to changes in legislation.  I have to concede that there is really not much new information being presented here.  Versions of many of these events have previously been referenced in relation to Second Amendment rights, and in fact some previously occurring events are even directly cited in subsequent events.  In many cases though, these same events have been presented with severely different conclusions.  In some cases it is clear that the past event is being filtered through a perception of recent legislation as opposed to whether recent legislation actually follows the intent created in the past event…putting the cart before the horse so to speak.  However, I have not found an accounting of Second Amendment rights in a full chronological representation of the changing ideologies in both government and the people over time to completely address the progressive nature of those changes in sentiment and law.   Also, what I read in the legislation and what I see resulting from an event may be different than past evaluations, and I’ll attempt to explain my reasoning.   Where wars are brought up, or possibly not brought up at all, please do not assume the length of the discussion under the topic is meant as any implication of its historical importance to society overall as I only intend to cover aspects that appear to have had an impact on gun rights philosophy or legislation in some manner.  As such, the English Bill of Rights, though being from England, may be a lengthier discussion than WWII in regards to our specific topic at hand.  If there is an overall evaluation regarding one of the events that will be better served in remaining sections of this book, I will save the evaluation for that time; if those evaluations are best described while accounting the event itself and merely prefatory to other events or topics in other sections of this book then I will address them here.  Since arguments are often made that the right to bear arms is specific to the militia, legislation regarding changes in the militia and its use will be included here as well.  In some cases militia regulation may appear to directly pertain to the right to bear arms itself, at other times it may appear to suggest the reason to desire the right, but both are pertinent to the discussion.  When legislation is presented, I will show the legislation as it was adopted.  If there are subsequent amendments to the law that would later effect our discussion, I’ll try attempt to present them the best I can.  Since new legislation is often intermixed into previous legislation and becomes quite convoluted, I will not reference any subsequent amendments that do not alter the points at hand.  Though there is a long history of an armed populace prior, the relevant past regarding the Second Amendment in the United States appears to begin with events leading up to the passing of the English Bill of Rights of 1689, so that is where we will begin.

The English Bill of Rights of 1689

Though the term ‘militia’ did not arise until the end of the 16th century, the concept that it was the duty of every able-bodied free man to defend his society and provide his own weapons to fulfill that obligation had existed for roughly a millennium. [Michael Rhys Powicke, Military Obligation in Medieval England:  A Study in Liberty and Duty.  Greenwood Pub Group (1962)pp. 563-565]  This was not only seen as a civil liberty, but as a means of suppressing a monarchial ruler as the concept of divine right of rule was on the rise.  Much of the conflict leading to the English Bill of Rights of 1689 actually revolved around religious beliefs under monarchial power, but played itself out through restrictions on arms and a monarchial authority over the ‘militia.’  Under Charles II, the Stuarts had begun to restrict the right of the people to have arms through legislation, but did not enforce it heavily so backlash was initially moderate.  Much of this was through registration of sales and possession, forest and game laws placing restrictions on illegal hunting, and eventually leading to warrantless searches and seizures by the militia for the enforcement of those restrictions. [Joseph E. Olson and David B. Kopel.  All The Way Down the Slippery Slope:  Gun Prohibition in England and Some Lessons For Civil Liberties in America.  22 Hamline L. Rev. 399-465 (1999)  William S. Hein and Company]  Under the Militia Act of 1662, the militia had been given broad powers to disarm otherwise law abiding citizens and placed the control of the militia exclusively under the King, and not that of Parliament.  [See Militia Act of 1662, 14 Car. 2, ch.3 (Eng.)]  Can you imagine if one man, such as the President, had exclusive control over state militias like that in the United States? The Game Act of 1671 restricted anyone without a specific amount of income from land from possessing firearms and many other tools for hunting.  This effectively removed the right to own firearms from roughly 95 percent of the population, leaving the right to virtually only the nobility, and provided for Gamekeepers who could obtain warrants to search any home suspected of harboring weapons and seize any firearms they found.  [See Game Act of 1671, 22 & 23 Car. 2, ch. 25 (Eng.)]  James II, a Roman Catholic, was seen as religiously tolerant by the Protestant majority of the people.  In the few short years of rule by James II, the kingdom was perceived as having effectively restricted Protestants from the right to have arms through strict enforcement of both the previously existing Militia Act of 1662 and the Game Act of 1671.  The heir apparent of the throne was Mary II who was the daughter of James II, but more importantly a Protestant.  Mary II was married to William of Orange.  James II then gave birth to a son, James Francis Edward Stuart, and Protestants saw this new heir apparent as a sign of extended Roman Catholic rule, bringing the situation to a climax. [Harris, Tim, Revolution: The Great Crisis of the British Monarchy, 1685–1720, Penguin Books, Ltd., 2006. P. 271–272.   ISBN 0-7139-9759-1][ Ashley, Maurice, The Glorious Revolution of 1688, Charles Scribner’s Sons, New York, 1966.p. 110–111. ISBN 0-340-00896-2]  James II was overthrown (actually declared to be an abdication of the thrown)  in the Glorious Revolution with the help of William of Orange and would prove to be the last Roman Catholic monarch to reign over England.  Don’t worry, the Roman Catholic Church seems to be doing just fine.

The English Bill of Rights of 1689 was implemented after James II of England was overthrown in the Glorious Revolution, and was a restatement in statutory form of the “declaration of right” presented by the Convention Parliament to William and Mary in March 1689, inviting them to become joint sovereigns of England under the specific terms of this agreement. [The Bill of Rights, 1 W. & M., Sess. 2, ch. 2 (1689)]  A few of the provisions of the act include:

  • “That the subjects which are protestants, may have arms for their defense suitable to their conditions, and as allowed by law”
  • no standing army may be maintained during a time of peace without the consent of parliament.
  • freedom to petition the monarch without fear of retribution
  • “the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of Parliament”
  • no excessive bail or “cruel and unusual” punishments may be imposed

Any of these sound familiar to you?  However, In distinct contrast to what we find in the U.S. Bill of Rights, the English Bill of Rights eventually barred Roman Catholics from the throne of England as “it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a papist prince”, as stated in a prelude to the Act of Settlement of 1701 to follow 12 years later.  [An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject (The Act of Settlement). 12 and 13 Will 3 c. 2]  Maybe the Framers of the U.S. Constitution saw rights based on religious preference such as historically evidenced in England to be a problem and is why the 1st Amendment’s prohibition on a government religion precedes the right to bear arms in the Bill of Rights of the United States Constitution?  I know, I know…our 20th century U.S. currency proves that ideology didn’t exist when the Bill was drafted at the end of the 18th century.

It is important to point out something about the arms clause in the English Bill of Rights; there is no mention of a militia and no actual reference to a collective right, only an individual right.  This was actually debated by the members of Convention Parliament.  The first draft of the clause read; “It is necessary for the publick Safety, that the Subjects which are Protestants, should provide and keep Arms for their common Defence.  And that the Arms which have been seized, and taken from them, be restored.” [Anonymous Account of the Convention Proceeding, 1688, Rawlinson MS D1079, at fol. 8, Bodleian Library, Oxford.]  Subsequent versions dropped both the public safety phrase, and then the common defense phrase to the final drafting listed above.  At the time of the Convention Parliament, the concern regarding the militia was less about that of the collective defense and more about the extremely broad powers given to the militia under the Militia Act of 1662 to effectively disarm law abiding citizens, so protecting the militia in order to protect the right to have arms would have created an oxymoron. [Anonymous Account of the Convention Proceeding, 1688, Rawlinson MS D1079, fol. 10, Bodleian Library, Oxford] Attempts were made to present this clause as both an individual right and a collective right, but it is very important to understand here that though the collective right was ultimately dropped in the final draft, the individual right is clearly stated.  It should also be noted that the Game Act of 1671 was subsequently amended in 1692 [4 & 5 W. & M., ch. 23 (1692)], and more distinctly in 1706 [5 Ann, ch. 14 (1706)], removing guns from the “tools” of hunting definitions and thus from hunting restrictions. By the time we reach the late 1700’s the circumvention of the right to bear arms in England through hunting restrictions had been resolved, though not forgotten.

We should take a moment to explain some concepts on rights and individual and collective rights specifically.  The Declaration of Independence states that all men are endowed with “unalienable” rights. [Declaration of Independence.   Continental Congress, ratified July 4, 1776] An unalienable (or inalienable) right is incapable of being alienated, surrendered, or transferred. [Merrriam-Webster, url: http://www.merriam-webster.com/dictionary/inalienable]   It is a natural right which is a right conferred upon man by natural law. [Merrriam-Webster.  Url:  http://www.merriam-webster.com/dictionary/natural%20right]   A Legal right is a claim recognized and delimited by law for the purpose of securing it. [Merrriam-Webster.  Url:  http://www.merriam-webster.com/dictionary/legal+right]  An individual right is one held by a person individually, a collective right is one of a group of people in their entirety, either could be a natural right or a legal right.  An individual legal right might be a right to vote in an election, however individually you do not have the power to elect a President.  A legal collective right might therefore be that of a majority of society electing a President through all members expressing their individual right to vote in a democracy.  In this example, an individual right is prefatory and necessary for the collective right; a majority cannot elect a president if individuals are not allowed to vote.  One right might be prefatory to another, the right may be held both individually and collectively in sovereignty or they may not coexist in any capacity.  While I may have a natural individual right to urinate in private, there is no natural collective right which allows a group of people to pee in public.  The right to bear arms becomes an issue from two perspectives;  one, is the right to bear arms a natural right or merely a legal right; and two, is the right to bear arms an individual right, a collective right, or both.  At one extreme, a natural and individual right to bear arms cannot be taken away from that individual.  At the other, a legal and strictly collective right to bear arms could be removed from law and thus the right removed from every member of society without recourse.  This is really the essence of the debate at hand.

Sir William Blackstone’s The Commentaries on the Laws of England was a popular treatise on English law during the late 18th century. [Commentaries on the Laws of England Blackstone, William, Sir, 4 v. First Edition. Oxford : Printed at the Clarendon Press, 1765-1769] There is a lot of debate on how much the Framers actually followed Blackstone’s interpretations during debates surrounding our Constitution and Bill of Rights, but his Commentaries are the Second most referenced writing in the transcripts of the debates. [Donald S. Lutz and Charles S. Hyneman, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American political Science Review 189 (1984): 189-197] I’m not going to suggest the Framers built our Constitution or Bill of Rights directly around Blackstone’s interpretations of English Law, as it is not necessary for our purposes since it is already quite evident the Framers took the lead from the English Bill of Rights of 1689, however it is important to note that they were distinctly aware of Blackstone’s interpretations.  Blackstone’s comments are often said to have been quite lenient on the throne in regards to civil liberties, and maybe his interpretations were not entirely accurate in a true civil liberties capacity, but the Framers did seem to embody a desire for civil liberties that were consistent, at least, with Blackstone’s interpretation of them in England.  It is a couple of Blackstone’s interpretations of the laws of England themselves that are relevant in regards to understanding people’s perception of the right to bear arms under English Law during the late 18th century.  Blackstone writes;

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. [Commentaries, 1:139]

He clearly says here that resistance and self-preservation is a natural right and thus an individual right conferred upon each man, just as Convention Parliament had debated and resolved it to be. There are historians that argue that Blackstone only means a collective right which is not absolute here [Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989)], but the history shows that evaluation would be entirely contrary to the debates during the English Bill of Rights drafting and contrary to his use of “natural right.”  Does he imply a public allowance for the use of that natural right in a societal context, thus a collective right, to restrain the violence of oppression?  Possibly, but that is not as clear.  We cannot assume that because he merely uses the words public and society in his analysis, he means a public or societal collective right as opposed to the rights of the members of the public and society to have the individual right.  I have a public allowance, under due restrictions, to kiss my wife in public…it does not mean the public has a collective right to kiss my wife as well.  Maybe other quotes from Blackstone will clarify his intent;

In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen : liberties more generally talked of, than thoroughly understood ; and yet highly necessary to be perfectly known and considered by every man of rank or property, left his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in it’s full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. [Commentaries, Vol. I, p. 140]

Well, we have a birthright in the free enjoyment of personal security against tyranny and oppression, confirming a natural and individual right, but by whom and against whom may that birthright be defended is still left relatively vague.  Blackstone clearly states the need for laws to protect liberties while also a right of using arms for self preservation and defense but does every law necessarily supersede the right to use arms for self preservation and defense of liberties against the government (in Blackstone’s case that being either the monarchy or the legislature) specifically?  Here, Blackstone gives further clarification;

Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. [Commentaries, vol. I, p. 121-122]

This holds that civil liberties are that of a member of society, built around the natural rights of an individual, only being restricted to such degree as it keeps one man from doing mischief to a fellow citizen for the overall public good, and any further suppression of natural rights of the members of society by a monarchy or legislature is tyranny.  That clearly seems to state a collective right of society to preserve their natural liberties.  Okay, I think we have a more complete understanding of Blackstone’s views in regards to individual and collective rights at the time.  Blackstone does concede at one point “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”  [Commentaries Vol. II, p. 412]  So while Blackstone contends that the purpose of the natural right to bear arms is to restrain the violence of tyranny and oppression, he clearly states that the previously noted hunting restrictions were designed to circumvent that very right should the source of the tyranny and oppression be the government.  The circumvention of arms rights due to hunting restrictions was also confirmed by George St. Tucker in annotating Blackstone’s Commentaries on the Laws of England in 1803. [George St. Tucker, Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to Each Volume, Containing Short Tracts Upon Such Subjects as Appeared Necessary to Form a Connected View of the Laws of Virginia, as a Member of the Federal Union. W.Y. Birch, and  A. Small, R. Carr. 1803]  Tucker’s annotations are often regarded as being the first publication of interpretation of the Second Amendment [David B. Kopel.  The Second Amendment in the Nineteenth Century.  BYY Law Review (1998) p. 1370], with his notation “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” [The reference to “Art. 4″ reflects the fact that the Second Amendment was originally the Fourth Amendment before the original first two amendments were dropped] and stating further to our present point “whoever exams the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.”  [Annotating the Commentaries in footnotes 40 and 41.]   The restrictions were further referenced in 1809 by Willam Rawle in A View of the Constitution of the United States of America; “In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, ‘suitable to their conditions, and as allowed by law.’ An arbitrary code for the preservation of game in that country has long disgraced them.”  [William Rawle, A View of the Constitution of the United States 125–26 1829 (2d ed.)]

We’ve seen acknowledgement of the risks to liberty through circumventions of the right to bear arms, through such measures as historical hunting restrictions, but what was the overall mindset of the citizens of England, including those in English colonies fighting for independence, in the late 1700’s…is there any evidence others felt as Blackstone did?  This may best be addressed by comments in 1780 by the Recorder of London, the chief legal adviser to the mayor and council:

The right of his majesty’s Protestant subjects, to have arms for their own defence, and to use them for lawful purposes, is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of this kingdom, not only as a right, but as a duty; for all the subjects of the realm, who are able to bear arms, are bound to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of the public peace. And that right, which every Protestant most unquestionably possesses, individually, may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established by the authority of judicial decisions and ancient acts of parliament, as well as by reason and common sense. [W. Blizzard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals  59-60 (London 1785)]

We appear to have some consensus which suggests that both individual and collective rights were seen as being intended in the right to bear arms as demanded of William and Mary in the English Bill of Rights …at least as perceived by the people in the late 18th century.  As long as you’re Protestant of course.

In summary, we have a religious conflict in England between the standing Roman Catholic King and the Protestant social majority, being fought through the restriction of a right to bear arms diminishing the ability of Protestants to rebel, being enforced by a monarchial control of the militia given great latitude in disarming civilians, a subsequent shift in religious power in England to the Protestants, a return of civil liberties which includes the right to bear arms to Protestant subjects only now restricting Catholics from having arms with no mention of the militia in doing so, and then finally the removal of the gun inclusions in game laws for real restoration of the right to possess arms.  The issue here was that the Protestant majority of the people had civil liberties taken away so they could not instigate an act of  insurrection against the monarch who ruled by a belief in Catholicism not supported by that majority.  Neither side in this wanted to overthrow ‘monarchial rule’ itself or even the ruling family, it was to preserve the monarchial power under a specific religion by removing the threat of insurrection.  Remember, Mary II is still a Stuart… just not a Catholic.  The restrictions on the right to bear arms had been held to be a wanton and causeless restraint imposed by Catholic monarchial power.  Once Protestants were returned to the throne, gun rights were effectively returned to Protestants within a few years. Since the Protestants turned around and applied the same restrictions on the Catholics, this is certainly not an ‘equality’ of civil rights issue or Catholics would have subsequently been allowed to have arms. This would suggest the issue at hand regarding the English Bill of Rights was clearly about the power of insurrection, which appears to have been seen as both an individual and collective right of the people in times of oppression.  If you were Protestant in 1780s England, you probably did think you were the freest people on earth, if you were Catholic, maybe you weren’t feeling the freedom quite so much.  Did the Framers see the benefit of the English Bill of Rights while trying to avoid making these mistakes: creating a religious government leading directly to oppression of a group of its subjects and thus no overall ‘equality’ of civil rights among the people; leaving unalienable rights open to subjective interpretation by future government, such as circumventing the natural right to possess arms; and giving the power over the militia to one man, while still preserving the militia concept itself?  We’ll try to determine if there is any evidence in the late 1780s of the Framers having perceived the right as Blackstone did in1765 and the Recorder of London did in 1780; both an individual right and a collective right of the people.

 

Debate between Federalists / Anti-Federalists

“In 1787 I’m told our founding fathers did agree, to write a list of principles for keepin’ people free.” [Schoolhouse Rock! Preamble. 1976.  Url:  http://www.schoolhouserock.tv/Preamble.html]  Sorry, I just couldn’t resist a Schoolhouse Rock! reference.  The United States of America had already declared its independence as free states no longer under British rule and subsequently confirmed that independence having been victorious in the American Revolutionary War ending in 1783.  The fighting is over and our free nation lives happily ever after, right?  No, not exactly.   After the war, there developed two political parties with dissimilar ideologies.  The Federalists were those who wanted to amend and strengthen the government as previously formed under the Articles of Confederation.  The Federalists then dubbed anyone who did not support them, Anti-Federalists.  Anti-Federalists comprised people of many concerns:  some feeling the stronger government threatened the sovereignty of the states, effectively creating more of a Central Government than a Federal Government; some feeling the new government would be so strong as to effectively be a new monarchic power; and others who seem to feel that any government at all threatened their personal liberties.

Those of the Constitutional Congress, eventually referred to as the Framers of our Constitution, were comprised of representatives of both new political parties.  Many were not only involved in the debates directly, but also through subsequent writings to support ratification of the Constitution.  Among the Federalists were Alexander Hamilton, James Madison and John Jay. These three would later be known for the Federalist Papers written to support the strong government provided for in the Constitution and push for its ratification by the states.  George Washington and John Hancock were other notable Federalists.  Anti-Federalists were comprised of such names as Patrick Henry, Samuel Adams, Robert Lee and James Warren.  As a note, we should mention that Thomas Jefferson was stationed as Ambassador to France during the debate over federalism.  Though Jefferson expressed many anti-federalist thoughts over the years, indications are that he supported the Constitution so long as a bill of rights was added. [The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private, H.A. Washington, ed., 1853-1854, 9 vols.] Among these two political parties there were points of agreement and points of dissention regarding such concepts as state representation, standing armies, strength of militia, a right to bear arms and civil liberties in general.

One of the first problems addressed was state representation.  The smaller states favored the New Jersey Plan, which called for a one-house legislature with representatives selected by the state legislatures and each state casting one vote.  The larger states favored the Virginia plan with three branches of government and a bicameral (two house) legislature with representatives being based on a state’s population or money contributions.  In what has been called  “the Great Compromise” they decided on a bicameral legislature, where the House of Representative would have members apportioned among the states by population and elected by the people, and a Senate with an equal number of representatives from each state whom are chosen by the state legislatures. In spite of this compromise, many states still held a fear of a large federal government restricting state’s rights.

Another issue the Framers had to debate was the common defense.  To some degree, the common defense was addressed in Article I, Section 8 of the Constitution itself.  The Constitution gives Congress the power to:  Declare war; Raise and support Armies; Provide and maintain a Navy; make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress Insurrections and repel invasions; and to provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the service to the United States.  The President is made Commander in chief of the Army and Navy, and of the militia of the several states when called into the actual service of the United States. [United States Constitution. Ratified June 21,1788] This became a problem in attempting to ratify the Constitution, as many states saw an inherent risk of creating a standing army designed into the document.

In Convention during the drafting of the Constitution, while professing the value of both a common government and a militia, James Madison made this reference to standing armies;

As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.”  [James Madison in convention, August 23, 1787, the Avalon Project, Yale Law School]

Thomas Jefferson expressed his concerns directly to Madison in a letter dated December 20,1787;

I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations. Thomas Jefferson [letter to James Madison, 12/20/1787, [The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private, H.A. Washington, ed., 1853-1854, 9 vols.]

To temper the length of the discussion slightly, let us concede from here that there was a general mistrust of standing armies at the time and thus focus on comments from a few Federalists clearly attempting to tame those fears in order to achieve full ratification of the Constitution by the states.  One of those Federalists is again James Madison.  In Federalist Number 46, Madison addresses the fear of a standing army by pointing out the overwhelming strength of the armed militia.  Note here that Madison clearly segregates the militia as being independent of the regular army clearly discounting any arguments made that suggest the Framers intended the army and the militia to be one in the same.  Madison also points out how those state militias would in fact be a defense against the threats of tyranny from a federal standing army, discounting any future arguments made that suggest the Framers did not consider the militia to be a tool of insurrection against evident government tyranny, as Madison here expressly argues that intent;

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.  [(Federalist Papers #46) The Influence of the State and Federal Governments Compared, From the New York Packet, Tuesday, January 29, 1788. James Madison]

In Federalist Number 29 Alexander Hamilton addresses the fear of a standing army and also professes the strength of the militia as being a security against one;

But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist. [(Federalist Papers #29) Concerning the Militia, From the Daily AdvertiserThursday, January 10 1788, Alexander Hamilton]

Noah Webster (yes, the man whose name is on your dictionary) was also a Federalist and in support of the Constitution.  He is often labeled as the forgotten founding father. [Joshua Kendall.  The Forgotten Founding Father:  Noah Webster’s Obsession and the Creation of an American Culture.  Berkley Trade; Reprint edition (2012).  ISBN: 0425245454] In his pamphlet titled “An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia” Webster says;

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States [Noah Webster in `An Examination into the Leading Principles of the Federal Constitution’, 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))]

Here we clearly have three Federalists at the time, in support of the provisions of maintaining a Navy and raising an Army provided in the Constitution, attempting to squelch the fears of creating a standing army, while confirming the risks inherent in a standing army.  All point out the strength of an armed militia and the ideology that a standing army could never defeat a militia of the people.  Is there any doubt here that this is what the Federalists are selling to the states in opposition to any potential standing army and the subsequent fear of a tyrannical government; the power of an armed militia of the people?  We have Jefferson proposing a Bill of Rights to restrain the threat of a standing army, among other threats to personal liberties.  What we do not yet have is a real understanding of what constitutes a militia and under what circumstances the people may be armed.

“I ask, sir, what is the militia? They consist now of the whole people, except a few public officers” as stated by George Mason during debates in Virginia Convention on Ratification of the Constitution.  [Elliot, Jonathan. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 3, June 16, 1788. pg 425] Well, that seems to align with the ideologies of Jefferson, Madison, Hamilton and Webster that the militia is all of the people.  They all speak of an armed militia as though it is one of those unalienable rights addressed in the Declaration of Independence, never questioning the right as though it cannot be taken away.  They all speak of the militia as being entirely different than Congress’ raised army.   The Constitution itself distinctly segregates the rights of Congress to call up the militia from the right to raise and support an army.  There is no semantic confusion suggesting that they meant that the militia was the army, they call the army the army and call the militia the militia.   There is no debate about whether a militia should exist, the debate is about a federal army and the answer is unequivocally that the armed militia of the people would have the ability to overpower any standing army possibly established in the Constitution.  They clearly state the militia would be the strongest defense against a standing army used for government tyranny, clearly addressing the right of the people to insurrection under such circumstances.  The question then becomes; Can you ever remove the right to bear arms from the citizens of the United States without also effectively removing the safeguard against tyranny the militia is intended to preserve in the eyes of the Framers of the Constitution and the Bill of Rights?

Many over the years have argued that the right to bear arms was strictly for militia purposes.   Some will attempt to use this concept to restrict the right to bear arms to include military style weapons only, including the U.S. government, and we’ll look at how that plays out later.  Of course they then argue that the militia now means either the Army or National Guard and if you aren’t in one of those organizations, you have no right to bear arms.  Even Alexander Hamilton, though he was pointing out the futility in attempting to train the entire body of people composing the militia, does conclude; “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped.” [Federalist Papers #29] We’ve just seen how both of those two conclusions above are false, the Framers clearly supported an armed militia independent of the federal Army comprised of all the people.  Let’s look at the right to keep and bear arms more specifically though.  What about the beginning statement in the first argument on its own, is the right to bear arms only for militia purposes?  At this point, it appears to be mostly an irrelevant argument.  If the Framers believed a militia of all the people was a natural human right which cannot be taken away as they imply, taking away the arms of those people would immediately take away the ability to organize a militia.   If you cannot remove the right of the people to organize an armed militia it seems to logically follow that you can never remove the arms without removing the militia right.

Just in case, sans the militia, let’s see if there is any evidence that the Framers of the Constitution and Bill of Rights felt that the right to keep and bear arms was, in and of itself, also an unalienable right that cannot be taken away.  Jefferson, in the first draft of his proposal for the Virginia Constitution in 1776 writes; “No Free man shall ever be debarred the use of arms.” [Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])   In 1788, Richard Henry Lee, one of the initiators of the Declaration of Independence, and member of the first Senate which passed the Bill of Rights gave us the quote leading us into this chapter; “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.” [Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975]  At Virginia’s U.S. Constitution ratification convention in 1788, Patrick Henry asks; “[W]here and when did freedom exist when the power of the sword and purse were given up from the people?  Unless a miracle in human affairs interposed, no nation ever retained its liberty after the loss of the sword and purse.” [Elliot, Jonathan. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. Vol. 3, June 16, 1788. pg 169]   Henry argues that freedom itself is dependent upon the people bearing arms.  In February 6, 1788 during Massachusetts convention Samuel Adams states “and that the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms.” [Charles Hale, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts (1856), p. 86.] That seems to be an argument for the right to arms independent of the militia.  In fact, this led to the Massachusetts convention creating what ultimately became the language of the initial proposal for the Second amendment during the first session of Congress on June 8, 1789.  Though Adams mentions Congress in his statement, notice that the word “Congress” is not present in the language proposed;

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.  [Annals of Congress, House of Representatives, 1st Congress, 1st Session: p.451] 

Fisher Ames served in the Massachusetts House of Representatives in 1788 and was a member of the Massachusetts convention that ratified the Constitution.  He became a member of the First United States Congress where the Second Amendment was born in 1789. [Bernhard, Winfred E.A. Fisher Ames: Federalist and Statesman, 1758-1808. Chapel Hill: University of North Carolina Press, 1965]  In response to the amendments proposed by Madison, Ames wrote; “The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.”  This is a member of the first Congress while debating language for the Second Amendment stating the intent of Madison’s proposal is that the right of bearing arms is inherent in the people.   [Letter from Fisher Ames to F. R. Minot (June 12, 1789), in id. at 53-54.]

There is clearly an understanding that the right of bearing arms is an unalienable right.  However, there were other proposals after the initial draft of the Second Amendment we should look at.  Robert Whitehill, a delegate from Pennsylvania, attempted to offer at least two hunting related inclusions; ‘That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game…’ and ‘The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times…’, neither reference to hunting rights was ever subsequently debated regarding the drafting of the Second Amendment.   [Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 253–254.]  Does this mean we do not have a right to hunt, or was hunting already subordinate and implied in the right to bear arms?  I’m not sure I have the answer for that specifically, but what we can conclude is that hunting is irrelevant to the Second Amendment right as evidenced by their choosing to ignore Whitehall’s submissions for debate.  On August 17th another version was read into the journal;

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.  [Annals of Congress, House of Representatives, 1st Congress, 1st Session; p.669]

On September 4 the Senate voted to remove the definition of milita and the conscientious objector clause.  [Journal of the Senate of the United States of America, Vol 1: p.71] Defining a militia could have made specific implications, such as forcing every citizen to be trained which Hamilton noted would be futile; the inclusion of a conscientious objector clause might have defined the amendment as a ‘duty’ instead of a ‘right.’  They declined to take either of those approaches.  On September 9 the Senate proposed the words “for the common defence” be added after “bear arms” and was defeated.  [Journal of the Senate of the United States of America, Vol 1: p.77]  Remember when Convention Parliament made the same decision to avoid only creating a collective right in the English Bill of Rights in 1689?  Does this not suggest the intent of the Second Amendment was not solely to protect collective rights, such as the common defense, but also individual rights?  Remember, the common defense was already addressed in Article I, Section 8 of the Constitution; the Second Amendment was intended to secure something else in order to get the Constitution ratified.

The Second Amendment was adopted on December 15, 1791 along with the rest of the Bill of Rights.  The Second Amendment as passed by Congress states:

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. [Journal of the House of Representatives of the United States of America, Vol 1: p. 305]

There may very well be as many different interpretations of the final draft of the Second Amendment as there are regarding the meaning of life itself.  We’ve seen how we arrived at this final drafting, and compromise often creates ambiguity.  To conclude that there was 100% consensus among the Framers regarding all aspects of the Constitution, the Bill of Rights and specifically the Second Amendment would be incorrect, as there is substantial evidence that those issues were debated and the semantics were rewritten numerously both before the Constitution was drafted and during attempts at ratification when the Bill of Rights was drafted.  The Semantics of the Second Amendment were specifically debated and refined as well.  Over the years there seems to have developed some kind of belief that our founding fathers were all of one mind, standing around the floors of the newly formed Congress, holding hands and singing Kumbaya…and that just isn’t so.  Well, I can only say that with any level of confidence since Kumbaya wasn’t written until the 1930’s.  They very well may have had ‘High School Musical’ type sing-along’s in Congress in the 18th century, the men did wear wigs, I’ve just not found any reference to such musical interludes happening.  Maybe Schoolhouse Rock really has it right.  Regardless, this is most likely how the confusion has set in over the years.  People tend to try to argue that “all Framers believed this or that” and it just isn’t true.  There were disagreements and compromise.  Though Federalists and Anti-Federalists had different views on the degree of control of a federal government and the necessity for a federal army, all do seem to clearly reinforce an apprehension towards standing armies, a belief in the right and power of a militia of the people and that the right to bear arms was both an individual right and a collective right, not one or the other.  I’m not saying that it absolutely doesn’t exist, but I can find no argument made by any Framer of the Constitution or Bill of Rights that the people should be disarmed.

There are many questions left to ask.  Was the omission of the words “by Congress” after infringed merely an oversight or inferred, or do you think that the intent was that the right shall not be infringed by anyone?  Do you think the prefatory clause was intended to be restrictive on the right to keep and bear arms or were they merely protecting two unalienable rights that are distinct but partially correlated in one sentence?  Does the conscious decision not to include “for the common defence” suggest there is an individual right here and not just a collective right?  Does this either protect or restrict militia style arms specifically, and if so, do you think the Framers would have believed an assault weapons ban would be held to go no further than to restrain abuses of other citizen’s rights, or a wanton and causeless restraint of the will of the people?  Do you think the Framers felt that a weak militia in any state would have affected the security of the Union overall, leaving the states allowed to circumvent not only their own safety but that of the Union by leaving the states to regulate the people who make up their militia to using only using sticks and stones in spite of the Second Amendment?  Having seen how the English Bill of Rights shaped the beliefs of the Framers of the Constitution and the Bill of Rights and the subsequent interpretations being reflected in their own quotes, you should have a good foundation for answering these questions yourself, but we’ll have to see how the Legislative, Executive and Judicial branches of government address these issues over time.  One thing is for sure, the power struggle between the Federalists and the Anti-Federalists did not end with the ratification of the U.S. Constitution and the concessions the Anti-Federalists gained in the Bill of Rights would immediately start becoming eroded by Federalist ideologies and subsequent legislation.

 

Militia Act 1792 [Militia Act of 1792, Second Congress, Session I. Chapter XXVIII Passed May 2, 1792, providing for the authority of the President to call out the Militia]

The Militia Act of 1792 was enacted after the U.S. Army, led by General Arthur St. Claire and now known as St. Clair’s Defeat [Schecter, Barnet (2010). George Washington’s America. A Biography Through His Maps. New York: Walker & Company. p. 238. ISBN 978-0-8027-1748-1.], got the shit kicked out of it by the Western Confederacy of American Indians during part of the Northwest Indian War.  I don’t think I’m even taking any liberties here with the colloquialism, it is still held to be the greatest defeat of the U.S. Army by American Indians and the worst defeat the United States Army has ever suffered in relation to the proportion of total troops to losses, with just over 1,000 men going into battle and only 48 remaining unharmed.  St. Claire had started with roughly 2,000 men including 600 Army regulars, 800 six month conscripts and 600 militia.  Over a few days time, desertion and illness diminished this by half.  Somewhat justifiably, due to the desertions, the Act provides for penalties imposed on militia members who do not obey orders.

More importantly, and you have to pay very close attention here to follow how this evolves over time, Section 1 of the Act gives the President the power to call in the militia against an invasion, or imminent danger of invasion, by a foreign nation or Indian tribe specifically.  This stemmed from a fear that a recess of Congress would lead to a delay in mobilizing the state militias in times of imminent danger or rebellion.  You also have to remember here that the perceived enemy of the time, American Indians, was an enemy already on United States soil and an imminent threat, as proven by St. Claire’s Defeat.  Section 1 also allows the President, in the event there is an insurrection against a state government, with specific approval from either that state’s legislature (or executive power, if that states legislature cannot be convened) to call forth another state’s militia to suppress the insurrection.  Section 2 gives the President the right to call in the militia if the laws of the United States shall be opposed or the execution thereof obstructed in any state only if an associate justice or district judge has notified the President that the power has not been controlled by ordinary measure. If that state’s militia is not sufficient, and if the U.S. Congress is not in session, then the President is given the power to call in another state’s militia for adequate suppression of the violation.

The President is not given brought powers over the militia here.  He is given control in times of invasion, he’s given limited power in state insurrections with that state’s approval, he is given the power to use state militias to enforce violations of United States laws, again with that state’s approval, and the power to use other state’s militias for that purpose without the permission of Congress only if Congress is not in session.  Less than a year after the Constitution is ratified, Congress already begins to break down the checks and balances built into the three tier system of the U.S. Government by ceding some of the power directly given to the Legislative branch in Article I Section 8 to the Executive branch.  Here is the full text of Section 1 and 2 of the Act prior to its amendments in 1795, as the trend of change in these powers are relevant to our discussion.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger or scene of action as he may judge necessary to repel such invasion, and to issue his orders for that purpose, to such officer or officers of the militia as he shall think proper; and in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

The powers given to the President were to expire after 2 years plus any remaining term of that session of Congress, from the time it was passed.  Just before the 2 year expiration, President George Washington used this authority to call forth the militia to suppress the Whiskey rebellion in 1794.

 

Militia Act of 1795

The previous militia act being positively reinforced by successful use just as the 2 years was about to expire [Boyd, Steven R. ” Popular Rights, The Whiskey Rebellion and the Meaning of the First Amendment.” 1982 p.78], Congress passed the Militia Act of 1795 making the provisions in the previous act permanent powers, amending a few and adding more.  It was actually passed on May 8, 1792 six days after the previous Act but was not approved until February 28, 1795 along with the previously mentioned amendments.  It established the structure for the militia.  It also went one step further and creates the first attempt at mandatory militia service.  There is still no questioning of the right to keep and bear arms, in fact it is reinforced here by ‘every free able-bodied while male citizen’ being required to possess one.

I.  Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, 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. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Section 2 was amended such that the President did not need confirmation from an associate justice or district judge that oppositions and obstructions to U.S. law were not being suppressed in order to call in that state’s militia to attempt to suppress them, thus giving the President direct power over state militias at this point.  Keep in mind that we are specifically talking about the militia here and not the Army or Navy.  In fact, the Constitution didn’t grant either the President or Congress the power to use the Army or Navy for domestic disorders and emergencies.  We have, however, now vacated one ideology of the Bill of Rights in maintaining militias to keep the Federal Government in check.  Should citizens of a state be opposed to a Federal action in opposition of state’s rights, and resort to assembling its own state militia in defense, then the President can suggest the state itself is breaking Federal Law and seize control of the state militia for Federal purposes.  Wasn’t this one of the primary fears of the Anti-Federalists and basically the very thing both Hamilton and Madison believed would never happen under the Constitution and thus assured Anti-Federalist could never happen?

It only took 8 years (technically just 4 years from the actual adoption of the Bill of Rights in 1791) and a couple of uprisings to really knock the first chips out of the foundation of the U.S. Constitution by repurposing the state militias.  This Act seems to confirm that the militia is in fact ‘all the people’ but that states, and even the U.S. Congress, only have a perceived power of control over them.  The President now has autonomy over all state militias in times of invasion and insurrection, and over individual state militias if federal laws are being violated.  Remember, the Constitution gave the President the power to be the militia’s Commander in Chief only after they were called into actual service, the power of governing the militia was specifically given to Congress.  Is this an amendment of the Article I Section 8 power given to Congress which says “To provide for the calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” in violation of Article V requiring state ratification, or is ceding that power to the President merely an instance of the line before it “To make Rules for the Government and Regulation of the land and naval Forces” and nothing more, in spite of the definite shift in power between the branches?  The Constitutionality of this may be a tricky question to answer for certain, but you should still be aware that the question rightfully exists, as we’ve already seen historic evidence of a militia being used by a single person to oppress the people in England (which led to the English Bill of Rights.)  James Madison, who is credited with drafting the first ten amendments to the Constitution, once said in a letter to Thomas Jefferson;  “The constitution supposes, what the History of all Govts demonstrates, that the Ex.[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.[ative]” [Letter to Jefferson, c. 1798.  The Writings of James Madison. Edited by Gaillard Hunt. 9 vols. New York: G. P. Putnam’s Sons, 1900–1910.] and [The Founders’ Constitution. Volume 3, Article 1, Section 8, Clause 11, Document 8. http://press-pubs.uchicago.edu/founders/documents/a1_8_11s8.html]

The University of Chicago Press] Are the Militia Acts of 1792 and 1795 the first small steps towards circumventing that studied care?  Either way, I think we can chalk one up for Federalist, former General and current President George Washington and the Federal Government overall.

 

Insurrection Act of 1807

Approved on the last day of the Ninth Congress on March 3, 1807;

Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That, in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.  [By United States, Benjamin Brown French, John B. Colvin; Laws of the United States of America: From the 4th of March, 1789 to the 4th of March, 1815, Volume 4; published by John Bioren and 2. John Duane; R.C. Weightman; 1816; pg 115]

The stimulus for the Act is relatively unknown, but some indicate it was in response to the Aaron Burr conspiracy.  [George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776-1861, 18 AM. J. LEGAL HIST. 52, 56-58 (1974).]  With the passing of this act the President now has the power to call forth the Army and Navy in times of insurrection or obstruction of the laws in addition to calling forth the militia as allowed by the previous Militia Acts.  Notice here that invasion is not mentioned, just insurrection and obstruction of the laws.  Since militias would not be invading the country, it appears the new power given to the President to call forth the Army and Navy may be opening the door to suppress an apparent insurrection or obstruction of the laws by the militia itself should such an event arise, without requiring legislative approval.  With this addition to the previous Militia Acts, the President now has autonomy over the militias directly in times of invasion, insurrection, and obstruction to the laws while also having autonomy over the Army and Navy in times of insurrection and obstruction to the laws.  This effectively gives the President police powers over U.S. citizens under certain conditions.  This continues the trend of Congress enacting legislation ceding emergency powers granted to it by the Constitution to the President.  It also reinforces the concept that the militia and the federal armed forces are different entities.

We’ll just note here that in 2006, Congress made some changes in the Act through the Defense Authorization Bill which broadened the scope of its use to “restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition…”  Well, that’s virtually any reason.  This change was repealed in 2008 with a return to the previous wording. [H.R. 4986: National Defense Authorization Act for Fiscal Year 2008″. GovTrack.us. 2008. Retrieved January 24, 2008.]

 

The War of 1812

Is it somewhat ironic that James Madison was the first President calling for a Declaration of War from Congress after the quote we just read?  The reason we bring up the War of 1812 is due to the militia having been perceived as performing poorly in this war.  Those subject to militia duty were not eager to volunteer, felt it was poor pay, objected to serving outside their home states and peformed poorly when doing so and were not open to discipline.  [Quimby, Robert S. (1997). The U.S. Army in the War of 1812: An Operational and Command Study. East Lansing: Michigan State University Press.,v]  The failure of New England to provide militia units or financial support was a serious blow as well. [Donald R. Hickey (2012). The War of 1812: A Forgotten Conflict. U. of Illinois Press, p. 80.]  The Navy, however, was seen as having been overall successful.  Naval power on the Great Lakes became a contest of ship building, and a race towards increasing Naval power.  A new theme we seem to have stuck with over the years.  The British were successful with raids on the shores of the Chesapeake Bay though, resulting in the burning of the White House and Capitol.  The government seeing the need for a strong Navy created a rapidly expanding program of building warships, passing into law an “Act for the gradual increase of the Navy” authorizing 9 ships of the line and 12 heavy frigates at a cost of $1,000,000 a year for eight years. [Toll, Ian W. (2006). Six Frigates: The Epic History of the Founding of the U.S. Navy. New York: W.W. Norton. ISBN 978-0-393-05847-5. pp. 456,467.]  Yes, this is the Navy, but so much for the ideology of not maintaining standing armies due to their costs on society.  A ship is not as easy to call up as a member of the miltia though where time is of the essence.  The War of 1812 leads us further away from the ideology that a militia is stronger than a standing army to some degree, in this case evidenced by the perceived success of the Navy and the perceived lack of success of the militia, and thus relevant to our discussion in that capacity.  It appears this is where the “arms race” begins for the U.S.

 

Suppression of the Rebellion Act of 1861 [Suppression of the Rebellion Act of 1861, ch. 25, § 1, 12 Stat. 281, 281 (current version at 10 U.S.C. § 332 (2000))]

On the eve of the Civil War, Congress passed a direct amendment to the Militia Act of 1795.  Section 1 of the Act amends sections 1 and 2 of the Militia Act of 1792 that were carried over in the 1795 act;

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become Impracticable, in the judgment of the President of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory of the United States, it shall be lawful for the President of the United States to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as lie may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the, execution thereof forcibly obstructed.

It now lies in the sole judgment of the President when it is impracticable to enforce the laws by traditional means and to call forth both the militia and the federal forces for that enforcement.   The previous term insurrection is replaced by rebellion.  Though both are often considered synonyms, an insurrection [an act or instance of revolting against civil authority or an established government.  Merriam-Webster, Url:  http://www.merriam-webster.com/dictionary/insurrection] is a revolt (to renounce allegiance or subjection) [Merriam-Webster, Url:  http://www.merriam-webster.com/dictionary/revolt] against a civil authority or government while a rebellion [opposition to one in authority or dominance.  Merriam Webster, Url:  http://www.merriam-webster.com/dictionary/rebellion] can merely be an opposition to authority.  This power was previously related to acts which renounced the government, now it can be held to cover acts of those collectively trying to protect their civil rights from government abuse.  The Constitution states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.” [U.S. Constitution, Article I, Section 9]  The change in semantics in this act would bring those two concepts more in line and possibly provide the foundation for Martial Law.  Sections 2, 3 and 4 of 1795 Act were amended; Section 1 which created mandatory militia service for white able bodied citizens between a certain age and their required ownership of arms was left intact.

The Militia Act of 1862, passed by the U.S. (Union) Congress after the start of the Civil War, allowed African-Americans to serve in the militias. There were no other relevant changes regarding the militia overall, so we’ll just note that specific legislation exists here before we head into the Civil War. [The Militia Act of 1862, 12 Stat. 597, enacted July 17, 1862]

 

The American Civil War (1861 -1865)

We’ve all heard about the ‘War between the States.’  I will try not to recap any more of it than necessary for our discussion.  Nutshell version, we have our first official multi-state insurrection against the Federal Government…now what?  It immediately brings to question the issue of state’s rights.  Were rights being conceded to the states in the Bill of Rights just to get states to ratify the Constitution in spite of their fears of federal power merely to strengthen the union, or was the overall sovereignty of the states really a major part of the goal?  We had dealt with minor issues of insurrection before, but now that we have a multi-state and organized expression of it, we have to ask if the right, or even the concept, of insurrection had been built into the Constitution.  We’ll come back to insurrection later in the chapter.  It also brought up the concept of state’s rights in regards to citizens.  Some felt the rights they were afforded as a citizen of their state carried with them when they travelled to other states, while others felt that would be a violation of sovereignty of the state being visited. I don’t think we need to get into a discussion on Dred Scott or slavery in general here to serve our purposes, just keep in mind the issue brought about a conundrum inherent in the Bill of Rights and vaguely addressed in the Constitution; where exactly do powers and rights reserved to the states end not only in regards to each other and in relation to federal powers, but in relation to the citizens independently?  For instance, what happens when someone in a state that allows firearms drives to another state allowing firearms, but merely has to travel through a state that does not allow them? Which state’s laws take precedent?

Before the war began the existing army was roughly only 16,000 troops, so we still didn’t have a major standing army. [War Extracts p. 199-221, American Military History Url: http://www.history.army.mil/html/bookshelves/resmat/civil_war/extracts/the_civil_war_1861_(pg_199-221).pdf ]    After the attack on Fort Sumter, credited as the start of the actual war, Lincoln still had to call for the creation of a volunteer army from each state to attempt to retake it, roughly 75,000 troops. [Bornstein, David (April 14, 2011). “Lincoln’s Call to Arms”. Opinionator.blogs.nytimes.com. Archived from the original on July 13, 2011.]  Volunteers became insufficient, and the U.S. military has its first conscription, or draft, into military service. [Chambers, ed. The Oxford Companion to American Military History, 181] [James W. Geary, We Need Men: The Union Draft in the Civil War (1991)]   The invention of repeating firearms such as the Spencer Repeating Rifle (1860) and the Henry Repeating Rifle(1860) are credited as exacerbating the death toll and changing the nature of warfare. [Joseph G. Bilby, A Revolution in Arms:  A History of the First Repeating Rifles, Westholme Publishing 2005 ISBN: 1594160171]    The first machine gun (The Gatling Gun) followed a year later. [Greeley, Horace; Leon Case (1872). The Great Industries of the United States. J.B. Burr & Hyde. p. 944. ISBN 1-85506-627-0]  Keep this in mind for a later discussion; the repeating rifle only predates the machine gun by a single year.  I guess I should also point out that we got our first Federal income tax statute out of this as well, in order to fund the war against the confederacy. [Revenue Act of 1861, sec. 49, 12 Stat. 292, at 309 (Aug. 5, 1861).]  It seems there are those today who might argue that we didn’t actually end slavery, we just effectively nationalized it more fairly by class instead of race with such a tax.  The states attempted insurrection by secession, the insurrection was defeated by the United States, many of those were held accountable (assuming they weren’t already among the 750,000 plus dead) and prohibited from holding any type of office in the future and prohibited from seeking any recourse for the expense of their insurrection….and yet still the government goes to extra lengths to remove rights from the states directly, in a further attempt to strengthen the federal governments powers over the states

 

The Fourteenth Amendment to the Constitution of the United States (Ratified1868)

Nothing like a full scale multi state insurrection against the Federal Government to bring about a resolution on state’s rights.  Though it is mostly about punishing the states for insurrection, part of the Fourteenth Amendment does protect the civil liberties of citizens against abuses by the states that occurred prior to the Civil War.  As such, Section 1 is probably the only part necessary for our discussion, but you can find the entire Constitution and Amendments in Appendix A.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Bill of Rights Transcript,  Archives.gov, Url:  http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html, Retrieved 2013-02-06]

The 14th amendment defines citizenship, primarily being to the United States, and inconsequential to, secondarily being a citizen of the State in which you currently reside.   This somewhat clarifies the state’s rights conundrum.  The definition of citizenship, with emphasis on the United States, does seem to strengthen the concept that the Constitution was intended to be a perpetual union, unable to be broken by the states regardless of any disagreement with the Federal government.  While it does afford more protection to the citizens of the United States through the Bill of Rights, it definitely strengthens the role of the Federal government overall, and after nearly a century since concessions were made to appease both the Federalist and Anti-Federalist Framers of our Constitution, it appears the ideology of the Anti-Federalists was finally folded up and stuffed in the pockets of the beaten Confederates and told to take a long walk off a short pier.  In reality, the states still retained a lot of rights, but any hope they had of restricting the federal government’s power was effectively as dead as the 750,000 plus people who died in the civil war.

The Fourteenth Amendment is important to our discussion due to a clarification of citizenship, along with the Privileges and Immunities and Due Process Clauses.   For instance, does the Second Amendment now apply to the states as an overall civil liberty of American citizens, and would they have the right to take away a firearm that is your personal property without due process of law?  Sorry, but you’re going to have to wait more than a century to find out if the Fourteenth Amendment actually prohibits states from legislating away your Second Amendment rights…luckily that just means the end of this chapter.

 

Enforcement Act of 1871

The Enforcement Act of 1871 was passed as “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.”  [The Enforcement Act of 1871 (17 Stat. 13)]  It was most specifically for suppressing the Ku Klux Klan (it was also known as the Ku Klux Klan Act) at the time and was deemed a success. [Scaturro, Frank (1999). President Grant Reconsidered. Lanham, Maryland: Madison Books. pp. 71–72. ISBN 1-56833-132-0] The President’s power to call forth the militia and federal armed forces was expanded with the ability to resort to “other means”, and the reasons for using the power were expanded from those given in the previous Militia, Insurrection and Rebellion Acts we’ve covered to include enforcement of civil rights conferred by the Act, the recently adopted Fourteenth Amendment and the Constitution in general.  The most powerful provision in the Act was in Section 4 which empowered the President to suspend the writ of habeas corpus under the circumstances enumerated above.  The Act signifies a further move away from checks on Presidential authority and may very well create an Executive emergency power of martial law along with the ability to suspend habeas corpus.  The President now has the autonomy to suppress any segment of the armed populace, or an entire state militia in general, if the President feels the civil rights of any of its citizens are being jeopardized by such a group and it defines any acts by such a group as a rebellion against the government of the United States.  The irony to me seems to be that this Act would also give the President autonomy to suppress any armed group or entire state militia who are attempting to defend civil rights they think were denied by the federal government through a circumvention of democracy without any legislative approval from the federal government or the states.  I can’t help but think that even Federalists Hamilton and Madison are rolling over in their graves right now.  The slope seems to be getting more slippery.    

 

United States v. Cruikshank, 92 U.S. 542 (1875)

After a tense gubernatorial election in November of 1872, a mob of white Democrats attacked a group of black Republican freedmen at a Louisiana courthouse, killing what was estimated to be somewhere around  200 of them.  Some of the attackers were convicted under the Enforcement Act of 1870 (there were 3 Enforcement Acts in1870-1871) and the Supreme Court overturned the conviction.  In doing so, the court ruled that the Bill of Rights did not apply to the states, and more specifically to our discussion that the Second Amendment “has no other effect than to restrict the powers of the national government.”  Thus the ruling sets court precedent that the Second amendment is only Federal in nature.  In regards to the 14th Amendment, it rules that the Due Process and Equal Protection clauses only “prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen against another.”

However, since this case has often been held to conclude that you have no right to bear arms at a state level, I would like to provide you with an expanded quote from the same paragraph regarding the Second Amendment from above, as it actually says something more:

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

The court in Cruikshank quite clearly states you have a natural right to bear arms for a lawful purpose irrelevant of the Constitution or the Second Amendment, and they do not suggest that you do not have that right at a state level, in fact clearly explaining why you do.  Cruikshank has somehow been repeated and cited through history as denying recognition of individual rights claims, not only in subsequent court precedent, but in arguments validating state regulation of firearms…yet right there in the court’s own words they describe a natural right to bear arms for lawful purposes (which would have to include both individual and collective rights, as both are lawful.)  This does not appear to be merely dicta, it is in the exact same paragraph as the one line that courts subsequently quote as precedent, prefatory to that statement, and is clearly pertinent to their decision and the context in which that line was written.  Where you seek recourse for violations of that natural right is what they actually address here, in essence, you can only seek recourse through the federal courts for federal violations of rights (such as those granted in the Second amendment if violated by Congress.)

 

Posse Comitatus Act 1878 (18 U.S.C. § 1385, original at 20 Stat. 152) 

Merriam Webster defines Posse Comitatus as, “the entire body of the inhabitants who may be summoned by the sheriff to assist in preserving the public peace (as in a riot) or in executing a legal precept that is forcibly opposed including under the common law every male inhabitant who is above 15 years of age and not infirm.” [Merriam-Webster, Url:  http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html]    It is the equivalent of summoning the militia to suppress civil disorder.  The intent was to limit the powers of the federal government from using the Army to enforce state laws.  The Act does not make it illegal to do so; it just states that the authority must exist in the Constitution or by an act of Congress.  Here is the original act;

From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.  [Text at Wikisouce.  http://en.wikisource.org/wiki/Page:United_States_Statutes_at_Large_Volume_20.djvu/177.  Retreived 2013-1-31]

However, we’ve already seen the Acts of Congress that make the President exempt from the Posse Comitatus Act under many circumstances.  In 1956 it is amended to this; “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”  In addition to the Acts of Congress providing Presidential exceptions, the National Guard is exempt while under state authority as is the U.S. Coast Guard which operates under the Department of Homeland Security. [Jennifer Elsea, The Posse comitatus Act and Related Matters:  A Sketch. The Navy Department Library.  June 6, 2005.  Url: http://www.history.navy.mil/library/online/posse%20comit.htm.  Retreived:  2013-02-06 ]  I include it because it appears we have not entirely lost the fear of a standing army being used against U.S. citizens.  If the fear is still there, are desire to preserve the means to defend against it must still exist as well. 

 

Herman Presser v. State of Illinois, 116 U.S. 252 (1886)

Herman Presser was a member of Lehr und Wehr Verein (Educational and Defense Society), an Illinois corporation and Chicago based socialist militia group.  The organization trained for an anticipated confrontation between Capital and Labor, as some companies had been known to use services such as Pinkertons, who provided services ranging from security guards to private military contract work.  In 1879, the Illinois legislature passed an act requiring all ‘non state’ militia to obtain a license from the Governor.  Presser led a militia parade of roughly 40 men with rifles without a license and was indicted and found guilty.  Presser claimed this violated his Second Amendment rights, the court ruling the Second Amendment does not apply to the states, only limiting the power of Congress.

The right to bear arms is never an issue in this case, and you will see that the court clearly disqualifies that from the ruling.  Justice Woods actually quotes the full paragraph from Cruikshank above “is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for its existence…” restating the natural right to bear arms, so obviously he did not think part of that paragraph was dicta.  He follows it even further with a statement of his own:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Again, Justice Woods continues to confirm this is a natural right of the people irrelevant of the Constitution and clearly say the states cannot prohibit the people from keeping and bearing arms.  Justice Woods’ affirmation does, however, specifically point out the collective rights ideology in this case.  The court does address the 14th Amendment and concludes “A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States.  However, and you can attempt to call this one dicta if you wish, Justice Woods had just clearly described in the quote above how states attempting to deprive citizens of the right to bear arms would do just that.  State laws controlling the militia being the basis of this case, which would not deprive the people of a natural right or abridge other privileges or immunities, were clearly upheld.

How subsequent courts have been able to cherry pick a single sentence out of a decision, apparently throwing other relevant statements out as mere dicta and somehow continue to cite Cruikshank, and now Presser, as precedent that gives states the right to restrict the right of the people to bear arms is beyond me.  It takes a perverse twisting of the facts to negate the conclusions the court makes in both cases regarding the natural rights of citizens to do just that.  In these cases the Second Amendment does not apply to the states as it only restricts Congress, but both courts specifically say the people have a right to bear arms regardless of the Second Amendment which should not be prohibited and nothing the courts say in Cruikshank or Heller suggests the states have a right to control or regulate firearms, merely because that specific amendment doesn’t prohibit them from doing so.  Some acknowledge a restriction on firearm ownership the states can implement due to Justice Woods’ statement, such that it cannot disarm people to the extent that there is no remaining militia, however we’ve already seen that at this point in our timeline and since 1795 the militia is each and every free able-bodied white male citizen” between 18 and 45, and since 1862 we can redact the adjective ‘white.’

 

The Militia Act of 1903 [The Militia Act of 1903 (32 Stat. 775)]

The Militia Act of 1903 was also known as the Dick Act.  No, not because of what the legislation said or what it did to state militias, but because it was sponsored by U.S. Senator Charles W.F. Dick, chair of the Committee on the Militia. [DICK, Charles William Frederick at the Biographical Directory of the United States Congress. Url:  http://bioguide.congress.gov/scripts/biodisplay.pl?index=D000302  Retrieved January 2, 2011]     It was in response to two back to back wars; the Spanish American War of 1898 and the Philippine-American War (1899-1902).  The details of each war aren’t really pertinent to our discussion other than a couple of points.  At the start of the Spanish-American war the regular army consisted of roughly 28,000 men, we still don’t have a large standing army. The Army requested 50,000 new men and through volunteers and mobilization of state National Guards received over 220,000, so volunteers were not a problem this time. [Graham A. Cosmas, An Army for Empire: The United States Army and the Spanish–American War (1971) ch. 3–4]  Though the U.S. was deemed victorious in both cases, the conflicts seem to have again demonstrated a weakness in the militia and the U.S. military overall.  This act was the result of that assessment.  We bring it up in our analysis because it significantly redefines the nature of state militias even further.

The Dick Act extends the scope of militia constituents to include every able-bodied male of foreign birth who has declared his intention to become a citizen. I wonder how the illegals in our country, who claim to want to be made citizens, would feel about being called into militia service…maybe to defend the U.S. – Mexican border? It also splits the Militia into two distinct parts:  the state National Guard – the regularly enlisted, organized and uniformed active militia; and the Reserve Militia – every able-bodied male citizen of appropriate age remaining, suggesting there is an element of the militia that is still all of the people.

The Dick Act provides for firearms to be provided to the National Guard, they are no longer required to bring their own arms. Any rprevious requirement for the regular militia to own firearms is dropped. It places the National Guard under the direct authority of the Army Reserve.  This insures that the President can mobilize state military forces into the Federal armed forces at any time.  It keeps Governors from using the state National Guard as “private armies” by superseding state power.  At this point, the National Guards of the states officially become a tool of the Federal Government and its Army.

State militias…”You’re in the Army now…”

 

The Sullivan Act (1911) [New York Penal – Article 400 – § 400.00 Licenses to Carry, Possess, Repair and Dispose of Firearms]

The Sullivan Act is a gun control law enacted in 1911 in New York State.  A murder suicide in what is now Gramercy Park prompted the local coroner George Petit le Brun to put political pressure on legislators to pass gun laws.  Petit le Brun’s main argument for banning guns seems to stem from his statement; “Within the last few years, since the sale of poisons has been regulated by law and they cannot be purchased as easily as they were some years ago, there has been a marked decrease in suicide by poison.” Most of the statistics following his quote revolve around suicide and there is absolutely no data on gun related homicides to support the article’s title; Revolver Killings Fast Increasing [Revolver Killings Fast Increasing, New York Times, January 30, 1911]  State Senator Tim Sullivan, a notoriously corrupt Tammany Hall politician, sponsored the law which was passed a few months later. [Peter Duffy.  100 Years Ago, the Shot That Spurred New York’s Gun-Control Law.  The New York Times.  January 23, 2011, Url:  http://cityroom.blogs.nytimes.com/2011/01/23/100-years-ago-the-shot-that-spurred-new-yorks-gun-control-law/.  Retreived:  2013-02-06] Some at the time argue Sullivan pushed the bill so that Tammany Hall could keep their gangster allies under control. In “King of the Bowery:  Big Tim Sullivan, Tammany Hall, and New York City from the Gilded Age to the Progressive Era, Richard F. Welch writes; “Hoodlums who forgot who really ran things in the city could be easily arrested if found with a gun – or if one was slipped into their pocket.” [Richard F. Welch. 2009. “King of the Bowery: Big Tim Sullivan, Tammany Hall, and New York City from the Gilded Age to the Progressive Era.”]  According to the New York Times article published May 11, 1911 “The Sullivan bill makes the carrying of concealed weapons a felony, requires those using revolvers and small arms to obtain licenses from police Magistrates, and provides for the registration by dealers in firearms of all persons who buy revolvers or similar weapons.” [Bar Hidden Weapons on Sullivan’s Plea, New York Times, May 11, 1911] From the same article, here are Sullivan’s words in defense of the act; “A great big fellow driving a truck in one of the crowded streets of New York City only four days ago ran over a little Italian boy and killed him.  The father in a burst of anger lost control of his temper and shot the poor truckman dead.  Now there’s that man’s family, and he had a lot of children, and the man who did the shooting had a large number of children.  That ought to be enough to pass this bill without any one getting up and saying a word against it.”  [Bar Hidden Weapons on Sullivan’s Plea, New York Times, May 11, 1911]   And that’s just how quickly it can happen.  Though it has been amended over time this is one of the oldest standing gun control laws in the country and has served as a template for subsequent gun control legislation in the nation since [Peter Duffy.  100 Years Ago, the Shot That Spurred New York’s Gun-Control Law.  The New York Times.  January 23, 2011, Url:  http://cityroom.blogs.nytimes.com/2011/01/23/100-years-ago-the-shot-that-spurred-new-yorks-gun-control-law/.  Retrieved:  2013-02-06], yet all accounts say it was sparked by two deaths (a murder / suicide), instigated by a coroner preoccupied with high local suicide rates and promoted by a State Senator likely to have ulterior and somewhat unethical political motives.  Over the years it has progressively been amended such that it is now a virtual ban on handguns in New York. [Gary Kleck & Don B. Kates.  Armed:  New Perspectives on Gun Control.  Prometheus Books 1991.  P. 130]  Do you think this act reflects sensible law in restricting civil rights for the public good, or a ‘wanton and causeless restraint of the will of the people?’

 

World War I (1914-1918)

Then there is this skirmish called World War I, but there isn’t much to say about firearm rights really as a result of that war.  The first machine guns had been used in the Civil War, but the machine gun becomes one of the most effective tactical weapons used at the height of WWI. [Anthony Smith, Machine Gun: The Story of the Men and the Weapon That Changed the Face of War, Macmillan. 2004]  By the end of WWI the United States had amassed an Army of roughly 3.5 million soldiers, when the General Staff called for the first peacetime assembly of an army in 1923, the Army had fewer than 400,000 troops. [Owen Rust, Size of U.S. Mitary Since WWI.  Yahoo! Contributor Network.  2012-01-27.  Url:  http://news.yahoo.com/size-u-military-since-wwi-185632617.html.  Retrieved:  2013-02-07]  It appears we still do not have a ‘standing army’ mentality, but the number of peacetime troops has certainly grown. Historian James Huston noted that the United States “had revealed the greatest war-making capacity that the world had ever seen.” [Frank N. Shubert.  Mobilization.  U.S. Army Center of Military History.  Url:  http://www.history.army.mil/documents/mobpam.htm.  Retrieved:  2013-02-07] In other news, it appears that the “only Protestant subjects…” clan are fond of a right to bear arms and not so fond of a right to consume alcohol, and they lead a movement in the United States resulting in the Eighteenth Amendment to the Constitution. [Howard Clark Kee, Christianity: A Social and Cultural History. 2nd ed. (Prentice Hall, 1998) p. 486] They call it Prohibition.  Prohibition leads us to major legislation regarding firearms.

 

The National Firearms Act 1934 (“NFA”) [The National Firearms Act (“NFA”), 7Second Congress, Sess. 2, ch. 757, 48 Stat. 1236, enacted on June 26, 1934] [National Firearms Act of 1934, 48 Stat. 1236-1240 (1935), 26 U.S.C. § 1132 (1935), now codified beginning at 26 U.S.C. § 5801 (1998)]

Prohibition had just been repealed in 1933, and had been the cause of the rise of American gangsters such as Al Capone.   “As organized crime syndicates grew throughout the Prohibition era, territorial disputes often transformed America’s cities into violent battlegrounds. Homicides, burglaries, and assaults consequently increased significantly between 1920 and 1933.” [Prohibition and the Rise of the American Gangster, The National Archives.  Blogs.archives.gov/prologue/?p=8258, retrieved 1/16/2013]  The NFA originally defined “firearm” as:

“A shotgun or rifle having a barrel of less than eighteen inches in length or any other weapon, other than a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machinegun, and includes a muffler or silencer for any firearm whether or not such a firearm is included in the foregoing definition.” [Robert J. Spitzer (2009). Gun control: a documentary and reference guide. Greenwood Publishing Group. pp. 131. ISBN 978-0-313-34566-1. http://books.google.com/books?id=Fcyso0h9F8AC.]

The Act doesn’t ban any weapons, it only requires registration and taxes certain weapons through what is at this time known as the Miscellaneous Tax Unit of the Bureau of Internal Revenue (yes, that IRS) [In 1953, the name change to the “Internal Revenue Service” was formalized in Treasury Decision 6038.  1953-2 C.B. 657 (August 21, 1953), filed with Division of the Federal Register on August 26, 1967. Compare Treas. Department Order 150-29 (July 9, 1953)], control of which had just been returned to the U.S. Department of the Treasury after a brief stay at the Department of Justice under its moniker the Bureau of Prohibition…remember Elliot Ness and The “Untouchables” from that HBO movie you watched? [“History of ATF from Oxford University Press, Inc. – 1789––1998 U.S”. Atf.gov. Retrieved 2013-02-07]  Eventually this becomes the Bureau of Alcohol, Tobacco and Firearms so you may often hear ATF when speaking of the original NFA, though that title is not accurate until 1968.  Explaining the history of the National Firearms Act, the Bureau of Alcohol, Tobacco, Firearms and Explosives says:

“While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre.” [History of the National Firearms Act, Bureau of Alcohol, Tobacco & Firearms. Url:  http://www.atf.gov/firearms/nfa/.  Retreived:  2013-02-07]

Of course, they had already repealed the stimulus for the crimes themselves, but maybe taxing specific gangland weapons will stop future gangland violence?   It should be noted that the homicide rate had peaked in 1933 and already began dropping after the repeal of Prohibition and before the passing of the NFA. [Murder Statistics from Statistical Abstract of the United States, U.S. Department of Commerce]  Later we’ll look at the effect of the original NFA on overall homicides and gun crimes.

 

United States v. Miller, 307 U.S. 174 (1939)

Jack Miller and Frank Layton were charged with violating the NFA by transporting an unregistered ‘sawed off’ double barreled shotgun across state lines.  The District Court held that section eleven of the Act violates the Second Amendment and dismissed the indictment.  The United States appealed.  The Supreme Court reversed the decision and remanded the case back to the District court for further proceedings.  Miller was murdered before the decision was ever rendered and Layton later made a plea bargain, so further proceedings never took place. [Michael S. Brown (August 6, 2001).  “The strange case of the United States v. Miller”.  Enter Stage Right – A Journal of Modern conservatism. ]    It should also be noted that neither the defendants nor their legal counsel were present at the appeal in front of the Supreme Court.  In a unanimous opinion the Supreme Court stated “the objection that the Act usurps police power reserved to the States is plainly untenable.” The court further sates:

“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Some conclude the court states that ‘non militia’ arms can be regulated and taxed under NFA without violating the Second amendment.  The court rules that shotguns are not militia in nature, but that is shown to be factually incorrect.  [Benedict Crowell, Assistant Secretary of War (1919). America’s Munitions, 1917-1918. Government Printing Office, Washington D.C.. pp. 185–186]  Further, machine guns are listed under the original act as well.  Can anyone possibly believe that the court was trying to argue that the NFA ‘overall’ didn’t violate Second amendment rights because it only regulated ‘non-militia’ firearms?  WWI was 1914-1918 and the machine gun was one of the most common tactical weapons used in the height of that war.  [Anthony Smith, Machine Gun: The Story of the Men and the Weapon That Changed the Face of War, Macmillan. 2004]  Yes, even the National Guard, specifically a militia, was using machine guns prior to the Miller case in 1939. [Robert John McCarthy.  History of Troop A Cavalry, Connecticut National Guard and its service in the Great War as Co. D, 102d Machine Gun Battalion.  Tuttle, Morehouse.  1919][Christopher Lee, The Boals of Boalsburg: Two Hundred Years of a Pennsylvania Heritage, Published in 1989 by in Pennsylvania Heritage Magazine, a publication of the Pennsylvania Historical and Museum Commission.]

Some conclude it specifically guarantees Second amendment rights to those arms of militia in nature.   Maybe this is because the U.S. Government specifically argues this point as part of the foundation for their case; ‘The “arms” referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes…’ [United States v. Miller, 307 U.S. 174 (1939), Brief filed by the United States, March 1939]  Wow!  You don’t hear the government arguing that today, do you?  Some concluded that the court never considered the personal defense aspects of a shotgun, only its suitability for militia use, therefore there is no individual right to bear arms. Some conclude it deems NFA not in violation because it taxes firearms as a revenue measure only, doesn’t ban them.  Another of the arguments directly made by the U.S. Government during the hearings; “The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.” [United States v. Miller, 307 U.S. 174 (1939), Brief filed by the United States, March 1939]  Of course, remember that quote earlier from BATFE?  Here it is again; “While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre.” [History of the National Firearms Act, Bureau of Alcohol, Tobacco & Firearms. Url:  http://www.atf.gov/firearms/nfa/.  Retreived:  2013-02-07]  Hmmm…is the ATF accusing the U.S. Government of perjury in the Miller case suggesting the purpose was not merely to tax but actually to restrict these weapons?  Others conclude it sets precedent that government can in fact regulate firearms, in spite of any interpretation by the courts of when or why.  All that seems to be left is a ‘sense’ that weapons can be regulated in spite of the Second amendment.  Ultimately, it appears this case didn’t resolve any Second amendment issues at all.  However, remnants of these false conclusions have been used to establish subsequent legislation over the years.  Does this court decision confirm a collective right, discount an individual right…or merely suggest that you have no rights when it comes to regulation falling under a division of what will eventually be the IRS?  (Yes, that was meant in jest)  Things are starting to get a bit convoluted at this point regarding militias and gun rights, aren’t they?  But another World War ought to distract your attention for a while.

 

World War II (1939-1942)

At the end of World War II in 1942, the Army had 5.4 million troops the cost of which was estimated to be about $68 billion to maintain.  Three years after the war ends, the Army peaks at 8 million troops.  President Roosevelt sets the maximum size of the Army to be 8.2 million. [Owen Rust, Size of U.S. Mitary Since WWI.  Yahoo! Contributor Network.  2012-01-27.  Url:  http://news.yahoo.com/size-u-military-since-wwi-185632617.html.  Retreived:  2013-02-07]  This appears to be the first time we didn’t immediately reduce the military dramatically after a conflict.  Is this the first sign of an acceptance of a standing army?  We definitely developed a euphoric admiration for the U.S. Army after WWII, and blowing up little green army men with firecrackers virtually became a rite of passage for American boys.  It seems the fear of standing armies will be lost on a new generation.  Well, maybe just until those same kids go to Vietnam.  I can’t find much in the way of changing ideologies specifically on gun rights after this war.

 

Israel Six-Day War 1967

I know this may seem obscure, but it ultimately has a dramatic effect on gun rights.  The inclusion of the Six-Day War has not been included to denounce Judaism or Israel in any way, but the change in both political and societal ideologies in the United States as a result of the event is clearly relevant to our discussion. The Six-Day war was fought between Israel and the neighboring states of the United Arab Republic (Egypt), Jordan and Syria.  At the end of the six days, Israel had taken control of the Gaza Strip and Sinai Peninsula from Egypt, the West Bank and East Jordan from Jordan and the Golan Heights from Syria. I’m sure none of this sounds familiar to you today.  The details of the war itself aren’t really important, but the drastic change in American sentiment immediately afterwards is.  Prior to the Six-Day War, the United States had been the first to recognize the state of Israel. U.S. policy was to remain neutral and not become too closely allied with Israel, and we were selling weapons not only to Israel, but also Egypt and Jordan. The Middle Eastern views of the United States had gone from one of being the most popular western country in their eyes to subtle shifts toward an understanding that we were at least fair to deal with prior to the war.    The United States government, however, began to feel the Arab states were drifting towards stronger allegiances with the Soviet UnionIn 1968 President Lyndon Johnson authorized the sale of Phantom fighter jets to Israel, clearly providing an edge to the Israelis and setting precedent for U.S. support of the Israeli military. [Six-Day War – http://en.wikipedia.org/wiki/Six-Day_War]     As of the end of 2012, the United States provides 21 percent of the funds for Israel’s military spending.  [Kelley, Michael; Here’s How Much America REALLY spendson Israel’s Defense;  Business Insider; 9/20/2012; retrieved 1/26/2013; url:  http://www.businessinsider.com/heres-how-much-america-really-spends-on-israels-defense-2012-9]  Israel currently receives $3 billion in U.S. assistance through U.S. Foreign Military Financing (FMF), that is more than half of all FMF spending.[ [Foreign Military Financing Account Summary. State Dept.]  The other change was of that of American Jews.  It is best summed up by Abraham H. Foxman, National Director of the Anti-Defamation League, in his article The Six-Day War: 40 Years Later;

For American Jews, 1967 was transformative both for its impact on attitudes toward Israel and for Jewish self-perception.  Zionism had been a controversial movement within the American Jewish community from the beginning of the century.  American Jews took a long time to feel comfortable with the Zionist movement and after the creation of the state, there still were large numbers of American Jews who remained indifferent to the new state, and even some who made clear that that was not their state.

The Six Day War made us all Zionists, if not literally than psychologically.  The American Jewish connection to Israel was sealed.  Even today, when one hears a lot about disaffection, the pride and depth of the continuing connection owe many of their roots to 1967.  [The Six-Day War: 40 Years Later; Abraham H. Foxman; National Director of the Anti-Defamation League; This article originally appeared in New Jersey Jewish Standard on May 25, 2007]

This change in ideology would reinforce government policy, and create a distinct change in both U.S.-Israel and U.S. Arab relations.  The era of “Islamic extremist” terrorist attacks towards the United States seems to begin at this time as a result of that policy shift, and persists today.  Unfortunately, I would have to concede that we chose our enemy; our enemy did not choose us.  I can find no evidence of “Islamic extremist” terrorist attacks specifically directed at the United States prior to 1967.  The first major event appears to be the Dawson’s Field hijackings of 5 jet aircraft headed to New York by the Popular Front for the Liberation of Palestine, intending to trade U.S. hostages or PFLP prisoners held by Israel. [Hijacked “Transcript”. Url:  http://www.pbs.org/wgbh/amex/hijacked/filmmore/pt.html.  Retrieved 2013-02-07] The eventual perception that terrorists are among us leads to extreme security measures and further restrictions on gun rights over time…of course to keep them out of the hands of the terrorists.

 

Gun Control Act of 1968 (Title I), NFA of 1968 (Title II)
Gun Control Act of 1968 (Title I) [The Gun Control Act of 1968 (GCA or GCA68), Pub.L. 90-618, 82 Stat. 1213, enacted October 22, 1968 ] and NFA of 1968 (Title II) (amended as 26 U.S.C. ch. 53)

Well, it turns out that President Lyndon Johnson not only brought us an age of terrorism, he immediately signed legislation severely restricting civilian gun rights in the United States; the Gun Control Act of 1968 (Title I) and an amendment to the NFA renamed the National Firearms Act of 1968 (Title II.)  This was brought about due to both legal and societal issues.

As far as legality, the original NFA had just been made impotent by the Supreme Court in Haynes v. United States. [Haynes v. United States, 390 U.S. 85 (1968.)]   Haynes was a convicted felon who was charged with possession of an NFA firearm without having registered it.   Haynes effectively argued that his lack of registration was effectively “pleading the 5th” and would have been an admission of his guilt.  The Supreme Court held that the original requirement of the NFA to register certain types of firearms did in fact violate the Fifth Amendment’s self-incrimination clause.

Societal issues did help spur the passage of these Acts as well.  John F. Kennedy had been assassinated with a bolt action rifle in 1963. [John F. Kennedy Assassination Homepage, Warren Commission Report, Page 645-646″.  Retrieved 2013-02-07]    Malcolm X was assassinated with a double-barreled sawed-off shotgun in 1965, although the medical examiner said that two bullets of different calibers had also been removed from his body. [Peter Kihss.  The New York Times.  Malcom X Shot to Death at Rally Here.  February 22, 1965]  More convincing though, were two assassinations during the actual debate of the legislation in 1968;   Robert F. Kennedy was shot with a .22 caliber revolver [Gladwin Hill, Kennedy is Dead, Victim of Assassin; Suspect, Arab Immigrant, Arraigned; Johnson Appoints Panel on Violence, The New York Times, June 6, 1968], and Martin Luther King Jr. was shot with a 30.06 rifle. [Earl Caldwell.  Martin Luther King Is Slain in Memphis; A White Is Suspected: Johnson Urges Calm.  The New York Times.  April 5, 1968]  Of course I added the weapons specifically, as only one of these four men was shot with a firearm regulated under either version of the NFA.  There are, however, conspiracy theories regarding every single one of these shooting regarding whether the documented weapon is really the one that killed the individual.

The Gun Control Act prohibits the selling of firearms by the newly created FFLs to certain categories of individuals thought to be a threat to public safety.  From 18 U.S.C Section 922(d);

It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person – (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year (2) is a fugitive from justice; (3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) has been adjudicated as a mental defective or has been committed to any mental institution; (5) who, being an alien – (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who (!2) has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that – (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) has been convicted in any court of a misdemeanor crime of domestic violence.

The GCA also does a number of other things; it creates a Federal Firearms License System (FFL) for anyone in the business of buying or selling firearms, it creates a requirement for serial numbers on any newly-manufactured firearm produced by licensed manufacturers in the United States or imported into the United States, it barred importation of handguns with specific features such as short barrel, small caliber and non-adjustable sights.  I assume the very last restriction is an assumption that it is easier to conceal a handgun that does not have adjustable sights?  The FFL and serial number restrictions really don’t seem that bad, in my opinion, but I can understand the argument that they lead to further restrictions.  That brings us to one last feature of the GCA, which creates a “sporting purposes” test in an attempt to ban imports of military surplus rifles, declaring that they must “be generally recognized as particularly suitable for or readily adaptable to sporting purposes.”  As interpreted by Bureau of Alcohol, Tobacco, Firearms and Explosives, “sporting purposes” includes only hunting and organized competitive target shooting, but does not include “plinking” or “practical shooting” nor does it allow for collection for historical or design interest. [Wikipedia.  http://en.wikipedia.org/wiki/Gun_Control_Act_of_1968]    Hence, foreign made assault rifles and machine guns such as the AK-47, the FN FAL or the Heckler & Koch MP5 could no longer be imported into the United States for civilian ownership (however, semi-automatic models of the same weapons were permitted until the definition of “sporting purpose” was further tightened in 1989.) [Department of the Treasury Study on the Sporting Suitablilty of Modified Semiautomatic Assault Rifles.  April, 1998]  The trend towards ‘sporting purposes’ being argued as the meaning of the Second Amendment by legislators really becomes abundantly clear now.

As a side note, and possibly comic relief, according to a letter from the ATF dated September 21, 2011 entitled  “Open Letter to All Federal Firearms Licensees”, holders of state-issued medical marijuana cards are automatically “prohibited persons” under 18 U.S.C 922(g)(3) and “shipping, transporting, receiving or possessing firearms or ammunition” by a medical marijuana card holder is a violation.  Marijuana is a Schedule I controlled substance and the Federal Law makes no exceptions for medicinal purposes even if sanctioned by state law.  Interesting. [Arthur Herbert.  Open Letter To All Federal Firearms Licensees.  U.S. Department of Justice. Bureau of Alcohol, Tobacco, firearms and Explosives.  September 21, 2011]

The revisions to the original NFA, now know as Title II, fixed the flaws pointed out in Haynes by making existing firearms impossible to register by civilians…not unnecessary, impossible.  False information on an NFA form is allowed to be used as evidence against a person in criminal proceedings for violations of the law occurring after the filing of the registration form.  The stripped down receiver of a machine gun is now a regulated firearm in and of itself, as are any unassembled individual internal parts that could be used to build a machine gun in most cases.  A category listed as Destructive Devices is added to the act, which covers any firearm with a bore over 0.50 inches (exempting 12 gauge shotguns due to their “legitimate sporting use”) and also covers grenades, bombs, explosive missiles, poison gas and related items.

There’s that sporting use statement again in regards to the shotgun.  What was it the U.S. Government argued in United States v Miller …wasn’t it that the Second Amendment protected military and public defense weapons exclusively?  How did we suddenly end up allowing or restricting firearms to civilians through determinations of “sporting purposes?”  The government sure changes its mind a lot to suit its purposes, doesn’t it?  Does anything we’ve covered so far indicate that the Second amendment has ever been a “sporting” right prior to this legislation?  If hunters in the United States had not been afforded some restrictions in the law, the people would never have obeyed it.  You can always legislate away sporting and hunting rights later, as history has shown.  This seems to set a clear precedent for further gun control.

 

The Vietnam War

The brevity of this paragraph is not meant to diminish the overall impact the Vietnam War had on overall sentiment in the United States regarding such matters, however, the war doesn’t seem to have incited any gun regulations specifically.  It was however the first televised war, leaving an impression that it gave the general public a distinct graphic image of armed combat. [Michael Mandelbaum.  Vietnam:  The Television War.  MIT Press Vol. 111, No. 4, Fall 1982]  It also trampled that euphoric admiration for the military we spoke of that arose after WWII.  The U.S. people clearly did not embrace the soldiers returning from war. [Jeff Mason and Laura Macinnis.  Obama calls treatment of Vietnam War veterans “a disgrace”. Reuters.  May 28, 2012]

 

Firearms Owners’ Protection Act (1986) [Firearms Owners’ Protection Act of May 19, Pub.L. 99–308, 100 Stat. 449, enacted May 19, 1986, codified at 18 U.S.C. § 921 et seq]

In spite of the major point of contention in this act that gets repeated over time, the name of the act is really not a misnomer.  Overall, it was intended to correct some abuses of the Gun Control Act.  Allegations of abuse by the ATF led to Congressional review.  The Senate Judiciary Subcommittee on the Constitution concludes;

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner. [Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5]

This act intended to correct some of the abuses thus implied to exist by the subcommittee.  Under the act, interstate sales of long guns were once again allowed under certain circumstances, it legalized ammunition shipments through the U.S. Postal Service, it removed requirements for record keeping on non armor-piercing ammunition, and provided for a ‘safe passage’ provision for those possessing firearms while merely passing through states which might have stricter gun control laws than their home state.  It contrast to this, it also extended the restrictions regarding certain categories of individuals thought to be a threat to public safety to private transactions.

FOPA effectively restricts the sale of newly manufactured machine guns to military and law enforcement only.  Ownership and sales of previously manufactured machine guns are still legal under NFA terms. Prior to this there had been a number of drug murders in Miami that were making headlines.  In Targeting Guns, Dr. Gary Kleck claims statistics on homicides during that period suggest that machine guns accounted for less than 1% of all homicides. [Kleck, Gary; Targeting Guns: Firearms and Their Control, Aldine Transaction 1997)]  Trying not to rely on Kleck’s evaluation exclusively, I have to admit I myself am having a hell of a time confirming more than one or two machine gun deaths in the United States since the end of Prohibition.  In a 1981 Time Magazine article, James Kelly claims that 23 percent of Miami murders in the previous year were from machine gun fire. [James Kelly.  South Florida:  Trouble in Paradise.  Time.  November 23, 1981]  Many of the machine pistols claimed to be used in the Miami murders fire the same rounds as common handguns so I’m not sure how the coroner could conclude what type of weapon that round came from other than hearsay in many cases.  Yet there is no denying that machine guns were at least used (though maybe not successfully) in Miami and that fact was heavily publicized by the media. Were machine guns a national problem at the passage of this act in 1986 justifying a ban?  All available evidence suggests no.

 

Brady Handgun Violence Prevention Act of 1993 [Pub.L. 103–159, 107 Stat. 1536]

This act was named after former White House Press Secretary James Brady who was shot during an assassination attempt on President Ronald Reagan by John Hinckly, Jr. with a .22 caliber revolver and paralyzed. [Wayne King.  Sarah and James Brady; Target:  The Gun Lobby.  The New York Times.  December 9, 1990] The Brady Act requires background checks by FFLs established by the GCA on dealer sales through the National Instant Criminal Background Check System (NICS) maintained by the FBI.  Private transfers of firearms do not require a background check.  Curios and relics are also not covered by the Brady Bill.  Section 922(g) prohibits the sending or receiving of firearms or ammunition by shipping or transport through interstate or foreign commerce transactions by the same group of prohibited people described by the GCA in Section 922(d) we quoted above.  Section 922(n) places the same restrictions on anyone under indictment for a crime punishable by imprisonment for a term exceeding one year.

 

The Branch Dividians, Waco Texas (1993)

I swear I’m not trying to make this book about Protestants but I’m required to give credit where credit is due.  The details behind the Waco siege, many of which seem still unresolved, are worthy of nothing short of a book of its own, but I’ll try to keep this as brief as possible.  Many of the details from both sides I can only explain as bizarre.  The Branch Dividians is a deeply religious sect of Seventh Day Adventists, the latter being a sect of Protestantism.  Members of the Dividians had a compound in Elk Texas, about nine miles northeast of Waco called Mount Carmel Center Ranch.   Leading up to the time of the siege they were led by David Koresh.  The Dividians also held the Seventh-day Adventist ‘end of times’ belief, and Koresh professed to be the second coming of Christ they awaited. [Wikipedia;  http://en.wikipedia.org/wiki/Waco_siege]   The ATF had been watching the place for roughly a year on reports of firearm deliveries, inert grenades and implications of receiving items used in making bombs, in addition to a few neighbors reporting machine gun fire.  Though it appeared at the time that the AR-15s the ATF confirmed having been sent to the Dividians were legal, in the affidavit for the search warrant ATF agent Davy Aquilera states;

I know based upon my training and experience that an AR-15 is a semi-automatic rifle practically identical to the M-16 rifle carried by United States Armed Forces. The AR-15 rifle fires .223 caliber ammunition and, just like the M-16, can carry magazines of ammunition ranging from 30 to 60 rounds of ammunition. I have been involved in many cases where defendants, following a relatively simple process, convert AR-15 semi-automatic rifles to fully automatic rifles of the nature of the M-16. This conversion process can often be accomplished by an individual purchasing certain parts which will quickly transform the rifle to fire fully automatic. Often times templates, milling machines, lathes and instruction guides are utilized by the converter.  [transcript of the affidavit of Davy Aguilera, Special Agent Bureau of ATF, used by the BATF in order to obtain a search warrant of the Branch Davidian center in Waco, TX. February 25, 1993. Before Dennis G. Green United States Magistrate Judge Western District of Texas]

Aguilera also refers to Mount Carmel Center as a “religious cult commune” and how Koresh believed he was the messiah.  Most of the gun related details in the affidavit appear to be hearsay; however the evidence that Branch Dividian had received all the components necessary to constitute a destructive device as defined by the NFA appeared to be confirmed, and thus a search most likely warranted.  I bring this up because having read through the affidavit, I was shocked at how many assumptions were being made that legally acquired firearms were most likely being modified illegally in support of obtaining a search warrant.  There was an overwhelming theme that Aguilera felt that Branch Dividian was guilty until proven innocent by a search.  The implication is that anybody who owns an AR-15 should be subject to a search warrant merely because it is possible to convert the semi-automatic weapon to full auto with a number of modifications and therefore they must be suspect of doing so.

There are indications that the Dividians had learned of the coming raid on February 28, but ATF proceeded anyway, and they were accompanied by the media.  Shots were fired as the ATF tried to serve the search warrant to initiate what was obviously intended as a raid, and a full scale gun fight followed.  Four ATF agents and five Davidians were killed in the initial gunfight, and Koresh is reported to have been wounded in the wrist.  There is still no determination as to who fired first, ATF or the Dividians.  Stories appeared to waiver.  ATF initially said that someone in the compound fired on them first.  One of the ATF agents later claimed that the first shots were fired by the ATF “dog team” sent to kill the dogs in the Davidians kennel.  [Bovard, James (May 15, 1995). “Not So Wacko”, The New Republic: “Rolland Ballestros, one of the first ATF agents out of the cattle trucks, told Texas Rangers and Waco police shortly after the raid that he thought the first shots came from agents aiming at the Davidians’ dogs.”]  Seriously, do you really need to shoot the dogs in a kennel for a search warrant? [a pet is considered property under the law, does a search warrant constitute due process in order to deprive you of that property?]  The whole event becomes a big media mess and ultimately ends violently 50 days later on April 19 during a second assault on the compound.

There is a controversy about the front door itself.  One of the members inside the compound, Steve Schneider, told FBI agents during the siege that “the evidence from the front door will clearly show how many bullets and what happened.”  [Robert Bryce (August 18, 2000). “Prying Open the Case of the Missing Door”. The Austin Chronicle. http://www.austinchronicle.com/issues/dispatch/2000-08-18/pols_feature9.html.]   Houston attorney Dick DeGuerin had gone inside the compound during the siege and testified in court that only the right hand door panel had bullet holes in it and clearly showed that the bullet holes were made from incoming rounds.  The right hand panel of the door mysteriously went missing before the trial.  Texas Trooper Sgt. David Keys later testified that he saw something being loaded into a U-Haul by two men shortly after the seige ended which may have been the door, but was never confirmed.

There were also reports of child abuse on the compound.  Other than Koresh himself saying he had fathered children with girls in their mid teens, and I’m not suggesting that isn’t abuse, no other evidence of child abuse was ever found.  In fact, during the siege the children on the compound didn’t want to leave. Though the ATF referred to many of those in the compound as hostages, all accounts seem to suggest that nobody wanted to leave. Reports suggest that 21 children eventually left the compound during the siege.  Attorney General Janet Reno used child abuse and a fear of mass suicide to convince President Bill Clinton to approve the final raid, though neither of those issues appeared to be a threat.  Reno did however specify no pyrotechnic devices be used in the assault. [Daniel Klaidman & Michael Isikoff.   A Fire That Won’t Die: As the surprises keep coming, Reno names a special counsel to sift the ashes of the Waco fiasco and answer the big question: did federal agents disobey orders against using deadly force, then lie about it?, Newsweek. July 20, 1999]  She also noted the FBI was getting tired of waiting and the standoff was costing a million dollars a week. On April 19, the FBI punched holes in the walls of the compound with booms on their armored CEVs in order to pump tear gas into the compound to force out the inhabitants.  It was later confirmed that the FBI did use pyrotechnic devices as well. [Frank Pellegrini.  What Is the FBI Trying to Tell Us About Waco?. Time. August 26, 1999]  Three hours after the breach in the compound walls three fires broke out.  It is still unclear how the fires began or which side was at fault.  The fire engulfed the complex and 76 men, women and children died in the fire, including David Koresh.  From the remains of the aftermath, the ATF concluded that some weapons had been modified to full-auto fire. [US Treasury Department July 13, 1995 Memorandum to the Press “Weapons Possessed by the Branch Davidians]

Many refer to the conflict as the Waco Massacre, and many details do still appear unresolved today.  On one hand:  It is not illegal to stockpile legal weapons for defense;  the Branch Dividians were never accused of offensive crimes with the weapons prior to the siege and appear to have only intended them to be for defensive purposes of their compound, under a religious belief they held protected under the 1st amendment;  machine guns manufactured prior to 1986 were not illegal and thus machine gun fire is not necessarily a sign of criminal activity; possessing a weapon which could be modified to break the law does not violate the law until you modify the weapon, unless you have specific parts which break the law in and of themselves;  did the confirmed evidence actually support a search warrant and full scale raid on the compound accompanied by the media?; did they in fact deserve to die if they did not start the firefight?  On the other hand:  Evidence suggests they did alter some firearms illegally;  does Freedom of Religion actually protect you from being judged delusion and a threat to society?; Koresh did admit to impregnating under-age girls; It is possible that they fired first when presented with the search warrant they had prior knowledge was coming.  The whole thing played out on live TV.  Time magazine conducted a poll in August of 1999 which indicated that roughly 61 percent of the people believed the Government started the fire. [HEARING BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE.  July 26, 2000.  Serial No. J-106-99]

On the second anniversary of the burning of the Mount Carmel Complex, Timothy McVeigh and Terry Nichols set off a bomb at the Alfred P. Murrah Federal Building in Oklahoma City, now known as the Oklahoma City Bombing.  McVeigh cited the mishandling of the Waco event by the federal government as the motivation for the bombing, thus choosing to set off the bomb on April 19.  In fact, McVeigh has been confirmed to have been present in the crowd at the Waco Siege himself.  In his own words McVeigh states;

I chose to bomb a federal building because such an action served more purposes than other options. Foremost, the bombing was a retaliatory strike; a counter attack, for the cumulative raids (and subsequent violence and damage) that federal agents had participated in over the preceding years (including, but not limited to, Waco.) From the formation of such units as the FBI’s “Hostage Rescue” and other assault teams amongst federal agencies during the ’80’s; culminating in the Waco incident, federal actions grew increasingly militaristic and violent, to the point where at Waco, our government – like the Chinese – was deploying tanks against its own citizens. [McVeigh’s Apr. 26 Letter to Fox News; 4/26/2001/ url:  http://www.foxnews.com/story/0,2933,17500,00.html; retrieved 2013/1/27]

I do not want to give the impression that I condone the actions of either the Branch Dividians or the subsequent actions of Timothy McVeigh in response to the Waco event.   I cannot say having read through the affidavits and testimony I’m entirely in support of the ATF or FBI in regards to that specific event either though.  The event could have been handled better; it could have been handled worse.  This event (and the subsequent Oklahoma City Bombing) I present here merely because it changed the perceptions of the overall public, legislators and law enforcement agencies dramatically.  As a result, some fear government oppression more, others developing a greater fear of domestic terrorism.  This results in a significant impact on the gun rights of average citizens.

 

Federal Assault Weapons Ban (AWB) (1994) 

The Federal Assault Weapons Ban, also known as the Public Safety and Recreational Firearms Use Protection Act, was a subtitle of the Violent Crime Control and Law Enforcement Act of 1994 under Title XI, Subtitle A.  The Stockton schoolyard shooting where Patrick Purdy killed 5 children and wounded 30 others in 1989 [Adams, Jane Meredith.  Sparked By School Massacre, Gun Debate Still Rages.  Chicago Tribune, May 29, 1995], and the subsequent Waco siege and the 101 California street shooting where Gian Luigi Ferri killed 8 people and himself in 1993 [Wikipedia; http://en.wikipedia.org/wiki/101_California_Street_shooting. “The killings sparked a number of legal and legislative actions that were precursors to the Violent Crime Control and Law Enforcement Act, H.R.3355, 103rd Congress (1994).”] are often cited as events which created the major stimulus for the ban.   The Federal Assault Weapons Ban prohibited the manufacture, transfer or possession of semiautomatic ‘assault weapons’, as well as a prohibition on the transfer or possession of large capacity ammunition feeding devices for civilian use for a period of ten years.  Any assault weapons legally owned prior to the passing of the act were exempt.  In addition to a long list of specifically named firearms, or any copies or duplicates of those firearms in any caliber, the act enumerates what constitutes an “assault weapon” in regards to three classes of firearms; Semiautomatic rifles, semiautomatic pistols and semiautomatic shotguns.  The qualifications for making each an assault weapon are listed below.

A semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following features:

  • A folding or telescoping stock
  • A pistol grip that protrudes beneath the action of the weapon
  • A bayonet mount
  • A flash suppressor or threaded barrel
  • A grenade launcher

A semiautomatic pistol that has an ability to accept a detachable magazine  and has at least two of the following:

  • An ammunition magazine that attaches to the pistol outside of the pistol grip
  • A threaded barrel capable of attaching a barrel extender, flash suppressor, handgrip or silencer
  • A shroud around the barrel which can be used to hold the firearm without being burned
  • A manufactured weight of 50 ounces or more when unloaded
  • A semiautomatic version of an automatic firearm

A semiautomatic shotgun that has at least two of the following features:

  • A folding or telescoping stock
  • A pistol grip that protrudes beneath the action of the weapon
  • A fixed magazine capacity in excess of 5 rounds
  • An ability to accept a detachable magazine [Public Safety and Recreational Firearms Use Protection Act, H.R.3355, 103rd Congress (1993-1994), Government Printing Office. Retrieved February 7, 2013]

Some pro-gun advocates argue that these are merely cosmetic features, but I would have to disagree in most cases.  I know a lot of people are grumbling right now, but I’ll address why.  Many of these features do in fact deal with the stability of the weapon during fire.  The bulk of restrictions around these weapons revolve around the ability to accept a detachable magazine which is not in the grip itself.  As such, overall size of the weapon doesn’t appear to be a major factor in regulating firearms in this act.  A folding stock, however, is listed because of its ease of concealment and seems an idiotic addition since semiautomatic handguns with a magazine in the grip are easier to conceal and are not being banned, so I want to disqualify that one right now from being either functional or cosmetic.  A telescoping stock, however, does provide a better fit for the shooter and thus more stability.  A muzzle brake will help with recoil, a flash suppressor will help maintain your view of the target when dark and a suppressor will silence that weapon to some degree; so I would have to concede a threaded barrel is not merely cosmetic.  A pistol grip or a forward grip on a rifle will provide more stability as well.  A grenade launcher and a bayonet mount don’t seem merely cosmetic either.  It would be like arguing that a condom is merely a cosmetic feature for your penis.  However;  First, the advantage of these features over a nearly identical firearm without as many of these features is most likely nominal in the big picture, still firing the same caliber round at virtually the same speed between rounds with the same magazine capacity, possibly only slightly less accurately in repetition and; Second, excluding the grenade launcher and folding stock, if there is any edge in having these features on a weapon, they would provide the exact same advantage to a person trying to defend his life from one or more aggressors as would someone attempting to use the weapon for offensive purposes.  You have to conclude that if any of these features are an offensive advantage in crime, those same features provide the same defensive advantage in self defense scenarios, not merely in a militia or military defense capacity.

The large capacity magazine ban actually encompassed a substantially larger overall restriction, as many non assault weapons were designed with large capacity magazines.  The bulk of this law really lies in the restriction on large capacity magazines, though it rarely gets the bulk of the attention with most people focusing on the weapon itself.  In fact, if you look up “Federal Assault Weapons Ban” on Wikipedia, the large capacity magazines barely even get a mention. [Wikipedia;  http://en.wikipedia.org/wiki/Federal_Assault_Weapons_Ban.  Retreived:  2013-02-07]  It may be because the restrictions are much easier to state than the “assault rifle” definitions.  In regards to civilian use, you cannot transfer a magazine with a capacity higher than 10 rounds, and you cannot own one unless it was lawfully owned prior to this act.  In the latter case regarding the ownership of pre-ban magazines, the government has the burden of proof regarding any accusations regarding violations of the law.  This restriction on large capacity magazines becomes extremely important when looking at statistics regarding this ban in the future.   Later, we’ll look at whether the newly labeled “assault weapons” or the large capacity magazines are even used in crimes and we’ll look at evaluations on its effect on crimes during the 10 year period.  In fact, the act itself required the Attorney General to investigate and study the effects of the subtitle on violent and drug trafficking crimes…that should be enlightening.

 

District of Columbia v. Heller, 554 U.S. 570 (2008)

District of Columbia v. Heller is a landmark Supreme Court case where the Second Amendment, quite literally, finally gets its day in court. The District of Columbia had a layered set of laws that effectively prohibited handguns.  It was a crime to carry an unregistered firearm and registration of firearms was prohibited.  You could not carry a handgun without a license, and the chief of police may issue licenses for one year periods.  Any lawfully owned firearms kept at home needed to be “unloaded and dissembled or bound by a trigger lock or similar device.”  The combined outcome was that you could not have a working firearm at home for self defense purposes.  Dick Heller was a police officer who was authorized to carry a gun on duty and was denied a registration certificate for a handgun he wished to keep at home for self defense.  He filed a lawsuit in the Federal District Court claiming the ban violated Second Amendment rights, which was dismissed.  The Court of Appeals held that the District of Columbia’s effective total ban of handguns violated Second Amendment rights and reversed the decision.  The Supreme Court was petitioned to hear the case.  They affirmed the decision and held that the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes.  The decision in the District of Columbia, however, only applied federally and did not extend to the states.  Justice Scalia delivered the opinion of the court, and noted that nothing in the previous cases of Cruikshank, Presser or Miller forecloses their interpretation of the Second Amendment in this decision.   As we previously noted, and Justice Scalia also confirms, the courts in the previous cases did in fact state that the right to bear arms was a natural and individual right.  Though they state that nothing changes previous court decisions, it is a dramatic change in how many courts have interpreted the Second Amendment right to be a collective right only.  The right to keep and bear arms is now officially an individual right supported by court precedent.  The court also states that the handgun is the most common and lawful choice for self defense, as such it is specifically protected under the Second Amendment.

In fact, Justice Scalia does an incredible job summing up an accurate history of the Second Amendment in dicta.  Hopefully this makes it into the appendix.  However, I can’t help but take note of a couple of questionable exceptions in subsequent logic which aren’t necessarily important to the case decision but are important to present and future interpretations of the Second Amendment overall.  Both deal with arms of military nature.  First, again in dicta, Justice Scalia cites three prevailing definitions of arms in the 18th century; “weapons of offence, or armour of defence”; “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another”; and “instruments of offence generally made use of in war” with Justice Scalia noting that the latter source “stated that all firearms constituted “arms.”’   Yet Justice Scalia makes the comment, “The term [arms] was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.  Granted nothing in these definitions says that arms are specifically for military use, but where do any of these definitions imply that arms were never employed in a military capacity? Maybe ‘not always employed in a military capacity’ would have been more appropriate.  If all firearms constitute arms, and if no arms were employed in a military capacity, what does Justice Scalia believe ‘was’ employed in a military capacity…sticks and stones?  In fact, one of the very definitions he provides states they were generally used in war.  It gets more confusing, as he then states ‘”Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.’  Militiamen, possessing those arms, are used in a military capacity.   You don’t have to know Latin to realize both words stem from the same root. [miles /miːles/ : soldier.  Charlton T. Lewis, An Elementary Latin Dictionary, p. 505, Oxford U. Pr., 1997]    What exactly is he doing here?  Is Justice Scalia specifically trying to deny that military weapons are protected under the Second Amendment, or is he just going too far out of his way to suggest that the Second Amendment right is not a collective right held by members of a militia?

Justice Scalia specifies how modern firearms are still protected under the Second Amendment;

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.  We do not interpret constitutional rights that way.  Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

That appears to put “the Second Amendment only applied to single shot muskets crowd” in their place but what constitutes a modern weapon then; repeating rifles, semiautomatic pistols, machine guns?  So based on his comment above these should be protected under the Second Amendment, right?  Looking at his interpretation of Miller, he states, ‘We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes…”  Let’s look at his further comments about machine guns to see how they align with this analysis of Miller;

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

I have read this paragraph well over 100 times now to try to decipher any bit of ambiguities I could be missing in its meaning…and I’ve contemplated a lot of them.   The argument I finally believe Scalia is making here, also considering his analysis of the Miller decision, is that the banning of M-16s does not detach the prefatory clause from the Second Amendment right since militia members at the time of the ratification would only bring weapons that were common and lawful at the time.  The fact that those types of weapons would no longer be adequate for a present day militia due to modern technology being a moot point; an M16 is neither common nor lawful in present day society and thus not protected by the Second  Amendment’s prefatory clause.  Yet we still have an individual right to keep and bear arms that are presently lawful regardless of the fit between the prefatory clause and the right itself and we must still acknowledge that right.

There appear to be some arguments that question Justice Scalia’s conclusion here.   Scalia’s suggestion that weapons most useful in military service – M-16 rifles and the like –  are not the sort of lawful weapons a citizen of society might bring to militia duty anyway, not being common and lawful in society at the time of the Heller decision, and therefore not protected by the Second Amendment fails to consider one fact;  It is not necessarily ‘modern developments’ that have limited the degree of fit between the prefatory clause of a militia and the protected right regarding firearms such as  the M-16, it is a series of regulations that have made the machine gun first “highly unusual in society at large” and finally unlawful, which may very well themselves be in violation of the Second Amendment.  Justice Scalia’s argument creates this conundrum; If you ban all weapons in violation of the Second Amendment, then no weapons will continue to be common and lawful weapons in society at the time, and thus no weapons would be protected under the Second Amendment (and I guess the militia will not be bringing any weapons to the fight in spite of no detachment of the prefatory clause from the Second Amendment right being created.)  It is a circular argument.  In 1934 the NFA taxed machine guns by requiring a registration, there is nothing to suggest that machine guns weren’t common at the time…apparently they felt they were too common or else why seek to restrict them?  They were certainly not uncommon in the military such as the court in Miller falsely concluded regarding the sawed off shotgun. [Benedict Crowell, Assistant Secretary of War (1919). America’s Munitions, 1917-1918. Government Printing Office, Washington D.C.. pp. 185–186]  Machine guns were not banned until 1986 (with a grandfather clause.) [FOPA]    At the time of Heller in 2008, of course machine guns were uncommon and unlawful in society; they had been restricted by the NFA of 1934 and subsequently banned by the Firearms Owners’ Protection Act, which theoretically could be a violation of the Second Amendment depending on how specifically you want to apply Justice Scalia’s interpretation of Miller to the Miller case itself in 1939.  You know, when machine guns were lawful but recently taxed.  If a present argument were made that claims that the National Firearms Act of 1934 and the Firearms Owners’ Protection Act of 1986 violated Second Amendment rights by regulating and then banning machine guns, a valid argument in rebuttal could not be made in this manner:  The Second Amendment only secures rights to weapons that are ‘common and lawful’ in society at the time;  machine guns are no longer ‘common and lawful’ in society due to the National Firearms Act of 1934  and the Firearms Owners’ Protection Act of 1986 effectively restricting and banning their sale;  therefore, the National Firearms Act of 1934  and the Firearms Owners’ Protection Act of 1986  do not violate Second Amendment rights.  Okay, one more time for any of who just aren’t quite seeing the problem yet:  the government could confiscate all guns from society by any means, then attempting to cite Scalia’s comments claim no guns are common or lawfully owned in society, and therefore no guns are protected by the Second Amendment.  This ideology could ultimately be used to effectively defeat the very precedent set in this case; concluding that handguns are the most prevalent and lawful form of self defense, therefore protected by the Second Amendment.  It appears to put the cart in front of the horse, by suggesting constitutionality is determined by restrictive legislation, and not that legislation is dictated and restrained by constitutionality.  I honestly have no desire to ever own a fully automatic weapon or any personal reasons to argue for ‘desiring’ to own one specifically, as I think they effectively waste ammunition and create more of a disadvantage than advantage in most cases where someone isn’t just handing you an endless supply of ammo for free, but if an M-16 is banned through legislation based on a purely arbitrary decision and then that arbitrary decision becomes the reason it is no longer protected by the Second Amendment as Scalia’s comments in this case suggest, then why would other firearms not follow suit as legislators try to repeat the tactic?  Maybe something like an ‘assault weapons ban” for instance.

And yet further into the conundrum we go.  It follows that by the very same argument, you could not constitutionally ban “assault rifles” based on Justice Scalia’s comments because they are, in fact, highly common in society and currently lawfully owned.  The prefatory clause not being detached from the Second Amendment, this is exactly the type of weapon a member of a modern day militia would bring!  Is it not coincidentally amusing that the current argument is that “assault rifles” are “too common” in society?  Wow, here we are again, with legislators attempting to regulate a firearm because it is perceived to be too common, though apparently protected by the Second Amendment for that very reason.  Why are legislators, such as Diane Feinstein, continuing to do this in stark contrast to Justice Scalia’s comments? [Jennifer Bendery.  Diane Feinstein Introduces Assault Weapons Ban, Urges Public To Help It Pass.  Huffington Post.  January 24, 2013.]    Is it because they realize the comments in the previous paragraph ring true?

Further, I find it hard to accept Justice Scalia’s implication that a machine gun is either a sophisticated arm of modern time or too dangerous and unusual, not sensible in the hands of the citizens that make up a militia nor something they would have possessed sans standing restrictions, suggesting it is in the ranks of modern-day bombers and tanks of which the militia should not possess. I can’t imagine he’s suggesting that the M-16 won’t work against bombers and tanks anyway; therefore you just can’t have one?  He’s got to be suggesting it is too modern and sophisticated for the modern citizen, right?  In addition to the fact that he himself called such an argument frivolous, I think there are some other problems there.  In fact, I might as well point out now that it is not illegal for civilians to own fighter jets or military tanks, so long as any weapons systems are deactivated. [Robert Evans, 6 things You Won’t Believe Are More Legal Than Marijuana, September 16, 2010, Url:  http://www.cracked.com/article_18732_6-things-you-wont-believe-are-more-legal-than-marijuana.html, Retreived:  2013-02-06]  That’s right, contrary to what you might think Justice Scalia infers, you can have your very own fighter jet and your very own tank…just not an M-16, that’s too dangerous and unusual.  The first notable machine gun in military service is considered to be the Gatling Gun and was invented  in 1861 [Greeley, Horace; Leon Case (1872). The Great Industries of the United States. J.B. Burr & Hyde. p. 944. ISBN 1-85506-627-0] and used by General Benjamin Butler of the Union Army and tested by the United States Navy in 1862. [Steven Wilson, The Galing Gun, Military.com, October 31, 2005, Url:  http://www.military.com/forums/0,15240,79614,00.html, Retreived 2013-02-06]  Yes, 19th century, 150 years ago.  That is the middle of the American Civil War, where much of the fighting was done by…you guessed it…militias.  Obviously guys didn’t bring these from home…but modern they are not.  In all fairness to semantics, the first Gatling gun actually required a person to crank it to fire continuously; therefore it was considered a ‘machine gun’ but was not a true automatic weapon.  The first true ‘fully automatic weapon’ was the Maxim gun, invented in 1884, which made use of the fired projectile’s recoil force to reload the weapon…also used by militias. [Encyclopedia Britannica: Sir Hiram Stevens Maxim, Url:  http://www.britannica.com/EBchecked/topic/370419/Sir-Hiram-Maxim]  This technology actually predates and inspires John Browning’s M1911 handgun [Pistol, Caliber .45, Automatic, M1911 Technical Manual TM 9-1005-211-34 1964 edition. Pentagon Publishing. 1964.][ Taylor, Chuck (1981). Complete Book Of Combat Handgunning. Boulder, CO: Paladin Press. p. 200] [Hogg, Ian V.; John Walter (2004). Pistols of the World (4 ed.). David & Charles. p. 225]  , which Justice Scalia just confirmed the Constitutional right to possess, and is thus an even more modern and sophisticated development than the machine gun that inspired it and due to its concealability and its .45 inch diameter projectile probably more dangerous.   Would you like to know what else machine guns predate?  Yep, both the tanks and bombers that Justice Scalia references (the first tank being built by the French, and for ease of disputing the bomber the Wright brothers’ first flight of an airplane; both 1903.)   [The Devil’s Chariots: The Birth and Secret Battles of the First Tanks John Glanfield (Sutton Publishing, 2001)][ “Milestones of Flight – 1903 Wright Flyer” – Smithsonian National Air and Space Museum.  Url:  http://airandspace.si.edu/exhibitions/gal100/wright1903.html]

The term ‘machine gun’ is about as vague as ‘jet airplane.’  Passing regulation on the general term with no distinction between an M16 and an M2 is like banning a Gulfwing because of an F-16.  Maybe both should be banned independently on their own merits and flaws, but to ban them both because they are both “jets” would be a ludicrous misuse of semantics.  Maybe we need more refinement in the semantics we use regarding automatic weapons and machine guns, segregating what are heavy artillery machine guns from small handheld submachine guns.  Let me ask you, do you think there is a distinct difference between someone with a full auto .223 (5.56) submachine gun in their hand and someone with a .50 caliber heavy artillery machine gun mounted in a turret on the roof of their house?  (I’m sure this is just a reminder for you; increasing the diameter of a circle times 2, such as the diameter of the cross section of a bullet, increases the area times 4) Would it even be fair to reference them both with the same general term ‘machine gun?’  Would you find one to be more dangerous and unusual than the other?  A change in technology from a single shot rifle or musket to a weapon that fires multiple rounds without reload is not a change that is a ‘modern development’, but a weapon that fires those same rounds with a single pull of the trigger is?  A six shot revolver was deemed more dangerous at its invention in comparison to a single shot musket just as an M-16 might now be deemed dangerous in comparison to a six shot revolver. [Joseph E. Olson and David B. Kopel.  All The Way Down the Slippery Slope:  Gun Prohibition in England and Some Lessons For Civil Liberties in America.  22 Hamline L. Rev. 399-465 (1999)  William S. Hein and Company]  Remember, the repeating rifle only predated the machine gun by a single year as well.  Dangerous is not only a matter of subjective perception, it is often a matter of a modern invention in the hands of an as yet untrained individual, and thus a matter of acclimation to technology.  Automobiles were once considered dangerous and unusual.   Where exactly do you justify drawing the line between what is modern and sophisticated, and what is dangerous?

On the surface, it appears that Justice Scalia did not think through his arms not used in a military capacity or M-16 comments logically at all.  In reality, he was probably doing the best he could to balance a new court precedent that confirms a Constitutional individual right to keep and bear arms as addressed in this specific case, while not entirely dismantling every single piece of legislation regarding the militia or firearms in the past 100 years which is merely implicated at violating Second Amendment rights in this decision with no other considerations as to that specific legislation’s merit.  None of this was to attack Justice Scalia in any way, but seeing the juggling he had to do in regards to militia and machine guns should at least make you ask if much of the prior standing legislation up until now isn’t just a house of cards that ultimately crumbles around confirmation of an individual right to keep and bear arms.  Hopefully it doesn’t crumble around the loophole Justice Scalia may have created.  It should be clear to you by now that the Supreme Court just brought us back in line with the historical meaning of the Second Amendment.  Whether you choose to possess firearms or not is irrelevant, you’ve just had a civil liberty restored either way.

 

McDonald v. Chicago, 561 U.S. ___ (2010) [McDonald v. Chicago, 561 U.S. ___ (2010)] 

McDonald v. Chicago is another landmark decision by the Supreme Court which held that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment, and thus extends the Heller decision to apply to the states.  Much like the District of Columbia, the City of Chicago had required that all firearms in the city be registered while also refusing to register handguns after a 1982 ban, effectively making handguns illegal.    Otis McDonald was an elderly man who had bought a house nearly 40 years ago and had watched the neighborhood decline drastically in that time. Though McDonald did own shotguns, he felt that a handgun was more appropriate for home self defense, and along with three others filed lawsuits.  The District Court dismissed the suits.  The Court of Appeals for the Seventh Circuit affirmed.  The Supreme Court reversed the decision in a 5-4 vote. The majority held that the Due Process clause of the Fourteenth Amendment incorporates the Second Amendment rights in Heller.  Justice Clarence Thomas disagreed with the Due Process claim and felt the Second Amendment was better incorporated through the Privileges and Immunities Clause, which would have effectively overturned the Slaughterhouse Cases and applied the entire Bill of Rights to the states.  Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented in the opinion and argued that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” which would warrant incorporation of the Second Amendment to the states through the Fourteenth Amendment.  I know these are Supreme Court Justices, but after the history we have covered so far, I’m beginning to wonder if these three can even read. I mean seriously, nothing in history suggesting that the right to keep and bear arms is a fundamental right?  Nearly everything we’ve seen in history, including the courts in Cruikshank and Presser, say the right to keep and bear arms is a fundamental and natural right of man.  It’s like suggesting there is no evidence that the sun, from the perception of those in the United States, rises in the East.  Do you think these three Justices really believe this, or are they trying to take a political stand through a body of government that is supposed to remain apolitical and unbiased?

 

Moore v. Madigan (Circuit docket 12/-1269, 12-1788) (2012)      

Moore v. Madigan was actually one in a set of two cases in appeal, consolidated together by the court for oral argument, which challenged an Illinois law which banned the carrying of firearms in public (outside of a few exceptions).  Appellants felt the Illinois law violated Second Amendment rights as interpreted in both District of Columbia v. Heller and McDonald v. City of Chicago.  However, neither of these cases specifically addressed that right outside of the home.   Judge Richard Posner in writing the opinion of the court stated, “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald” later adding “The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.”  Judge Posner also seems to warm legislators about initiating permit systems that only favor certain groups of individuals while effectively removing the rights of the average citizen to obtain a permit.  As we’ve seen, this is not an uncommon practice in an attempt to restrict gun rights.  For instance, California is a “may issue” state, but the response to a CCW (concealed carry) application in cities such as Los Angeles is often “May is on vacation right now.”  The court stayed the mandate for 180 days to allow Illinois legislature the opportunity to draft new legislation.  We have yet to see the effect this will have on state legislation regarding gun control.

 

Insurrection

We’ve seen how the fear of insurrection and attempts at insurrection have effected firearm and militia related legislation over time. We have not yet fully addressed discussions about a perceived right of insurrection existing and if such a right exists when expressing that right is justified.   We have seen how past concerns led us to the Posse Comitatus Act but we have not looked at any recent non firearm related legislation or events which might warrant the people to embrace an ideology of insurrection at the present time.  I don’t think an historic account of the Second Amendment would really be complete until we more fully address the concept of insurrection, and whether such a concept was implied in the right to keep and bear arms.

Can a system of government allow for its own demise by violent overthrow, if it understands that governments can be corrupted and the people oppressed by them?  Jefferson’s words in the Declaration of Independence address this directly.  I don’t mean to sound biased, but seriously, just read the document and it is clear as day.  The Declaration of Independence itself is an act of insurrection and explains quite clearly “why” they have the right to do so under “specific” circumstances;

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. [Declaration of Independence.   Continental Congress, ratified July 4, 1776]

Any American who would argue that the Founding Fathers did not believe in a right of insurrection, or that a need for insurrection can never one day arise, is either a hypocrite at best or delusional at worst.  Our present government was formed through insurrection.  Were any Framers of the Constitution Loyalists during the Revolutionary War?  It appears not.  Aside from the claim that Jared Ingersoll abstained from politics during the Revolutionary War, out of respect for his father who was deemed a Loyalist having been appointed Stamp Master by the British Crown for collecting Stamp Act revenue, which has been cited as the stimulus for American insurrection towards Britain [Middlekauff, Robert. The Glorious Cause: The American Revolution, 1763–1789. (2005) ISBN 13:978 0-19-516247-9 pg. 111–120. ] [Miller, John C. Origins of the American Revolution. (1943) pg. 149–153], but then openly sided with the revolution after the colonies declared their independence, I can find no references to suggest that a single signer of the Constitution had been a Loyalist during the American Revolutionary War  [Jared Ingersoll (1749-1822)”. University of Pennsylvania. http://www.archives.upenn.edu/people/1700s/ingersoll_jared.html ] and [Jared Ingersoll to Thomas Fitch, 11 Feb. 1765″. Prof.Jeffery Pasley, University of Missouri-Columbia. http://pasleybrothers.com/mocourses/texts/Barre.htm.] and [“Jared Ingersoll, Pennsylvania”. The National Archives  ]  If all signers were on the side of insurrection, they would have to concede insurrection is a viable option when the concept of democracy (or in this instance displayed by taxation without representation) has failed.  I have found no instances where any Framer has said something along the lines of “we tried insurrection against the British crown, and even though we were successful we realize it was wrong, we have therefore created a U.S. Constitution and attached a Bill of Rights to make sure people do not make the same mistake in the future.”  Though some have argued the Second Amendment was intended to secure the rights to the states to oppose the federal government, history clearly shows that right was ultimately given to the people and one of those reasons was to defend themselves against a tyrannical and oppressive government should it arise. The colonies had just fought for their freedom from what they perceived as an oppressive government.   Did this give anybody the right to attempt insurrection against the government for any reason?   Of course not, and it would be ludicrous to argue the Framers intended an unquestionable right of insurrection for any reason.  In fact, the fear of unjustified insurrections were already shown in many of the events we covered.  Evidence we’ve seen, however, shows they were definitely preserving for themselves and their offspring the ability to take such actions should the republic fail.

The concept of insurrection against an oppressive government is a slippery slope.  There is a grey area of uncertainty and deception about whether the government’s intent is really trending towards oppression or just a moderate misunderstanding and abuse of laws over the citizens, yet confirmation often comes too late to take any further action if the oppressed have delayed.  Should we not also ask if other amendments protecting rights regarding trials somehow relate to the right to take action in regards to this grey area, while also having the right to be judged fairly on its validity by your peers?

Colonel Charles J. Dunlap, Jr USAF tries to address insurrections in his essay Revolt of the Masses:  Armed Civilians and the Insurrectionary Theory of the Second Amendment. [Col. Charles J. Dunlap, Jr. (1995). “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment”. 62 TENN. L. REV. 643. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5203&context=faculty_scholarship&sei-redir=1. Retrieved January 26, 2013] Colonel Dunlap concludes, “No system of government can allow for its own demise by violent overthrow” but confirms the right exists when the Constitution’s system has failed.  If the right is acknowledged to exist in such circumstances, why couldn’t a system of government that was created by the people have a built in mechanism to also protect the people themselves from tyranny and oppression if that worst case scenario should arise?  Maybe a right of the people to keep and bear arms shall not be infringed clause?  It is like arguing that you can’t adopt a prenuptial agreement as part of the terms of marriage because a marriage can’t allow for its own demise through divorce.  Colonel Dunlap goes on to say;

Possession of small arms, including assault-type weapons, does not meaningfully check the combat power of advanced military establishments like those of the United States.  To suggest that civilians equipped with Second Amendment-type weapons are any match for modern security forces invites murderous confrontations that armed civilians will inevitably lose.

Well, first off, “advanced military establishments like those of the United States” sounds a hell of a lot like a standing army, the very thing the Framers feared.  Second, the existence of any perceived right of insurrection has no correlation with the success of such an insurrection.  Even in modern movies, the good guys don’t always win.  Third, modern day computer hackers can wreak havoc on your advanced military establishments, since much of it is electronics based, so a lack in projectile weaponry doesn’t necessarily mean a militia of the people lack other ‘advanced’ non projectile weapons with which to even the odds against a modern standing army.  Without judging the merits of their actions, you have to concede that groups like Anonymous do ultimately wield some destructive power.

At the time of Colonel Dunlap’s essay there was still a general understanding that previous court precedent held only a collective right in the Second Amendment with some feeling that was therefore only granted to the National Guard, but even still in an argument regarding a theory of a right of insurrection the success of the insurrection is irrelevant.  And though Colonel Dunlap doesn’t think a miltia of the people would have any chance against the U.S. military today, the Framers of the Constitution clearly felt otherwise.  Just because Colonel Dunlap argues that the Framers ultimately may have been wrong in their belief, doesn’t mean they didn’t hold the belief.

Another error Colonel Dunlap seems to make is the false conclusion that any member of a possible standing army would not subsequently hold the same beliefs as those attempting insurrection and fight for the people instead of the government.  In fact, the restrictions on a right to bear arms doesn’t seem to sit well with many members of the military, as many have spoken up.  In a letter to Diane Feinstein, who is proposing another assault weapons ban, Former Marine Joshua Boston had this to say;

I will not register my weapons should this bill be passed, as I do not believe it is the government’s right to know what I own. Nor do I think it prudent to tell you what I own so that it may be taken from me by a group of people who enjoy armed protection yet decry me having the same a crime. You ma’am have overstepped a line that is not your domain. I am a Marine Corps Veteran of 8 years, and I will not have some woman who proclaims the evil of an inanimate object, yet carries one, tell me I may not have one.

I am not your subject. I am the man who keeps you free. I am not your servant. I am the person whom you serve. I am not your peasant. I am the flesh and blood of America.
I am the man who fought for my country. I am the man who learned. I am an American. You will not tell me that I must register my semi-automatic AR-15 because of the actions of some evil man.

I will not be disarmed to suit the fear that has been established by the media and your misinformation campaign against the American public. [CNN iReport; joshdb50/ 2012-12-27; url: http://ireport.cnn.com/docs/DOC-902515]

Diane Feinstein responded that “The legislation will be carefully focused to protect the rights of existing gun owners by exempting hundreds of weapons used for hunting and sporting purposes.” [Imam, Jareem and Saidi, Nicole; CNN; Marine to senator:  No ma’am, ‘ I won’t register my guns, 2013-1-4; url: http://www.cnn.com/2013/01/04/us/marine-gun-letter-ireport/index.html]   There we are with that hunting and sporting interpretation again. What does that have anything to do with the Second Amendment or recent court decisions protecting Second Amendment rights for self defense, other than point out the exact method those rights were once circumvented by an oppressive monarch in England?

Since the time of Colonel Dunlap’s essay, we have seen that the courts have confirmed an individual right to keep and bear arms, independent of militia membership, which discounts many of his arguments.  It also seems clear from the essay that Colonel Dunlap’s perspective is one of a paid Colonel in the United States Air Force, which now appears to be a subset of the equivalent of a standing army, while suggesting that the defending of any government usurpation of power “does not require civilians keeping and bearing arms.”  I can’t help but feel Colonel Dunlap actually strengthens the fear of a standing army and desire for the right to defend yourself against a tyrannical and oppressive government, due to the very conclusion he makes that the people could never overcome the existing military and a USAF Colonel’s opinion that the people need not be armed.  Federalists Alexander Hamilton and James Madison argued it could never happen, but maybe they were wrong.

If arguing the validity of insurrection rights we must look for present signs in today’s society, if any, that the U.S. government might intend to restrict citizen’s rights in defiance of democracy.  If such conditions don’t exist, any right of insurrection may be moot to begin with.   I don’t want this to turn into a “Conspiracy Theory” book, but you still have to discuss existing facts objectively.  I know some of these topics are hotbeds for conspiracy theorists, but they exists none the less, so we must look for any trends.

Remember when President George H. W. Bush talked about a New World Order in his speech of September 11, 1990, “Out of these troubled times, our fifth objective — a new world order — can emerge: a new era — freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace.”   [George Bush Presidential Library and Museum.  Address Before a Joint Session of the Congress on the Persian Gulf Crisis and the Federal Budget Deficit.  1990-09-11.  url: http://bushlibrary.tamu.edu/research/public_papers.php?id=2217&year=1990&month=9.  Retreived 2013-2-1]  Though he continued to talk about the United Nations in the speech, the comment wasn’t exactly clear as to what he really meant.  On January 16, 1991 he was more specific;

We have before us the opportunity to forge for ourselves and for future generations a new world order — a world where the rule of law, not the law of the jungle, governs the conduct of nations. When we are successful — and we will be — we have a real chance at this new world order, an order in which a credible United Nations can use its peacekeeping role to fulfill the promise and vision of the U.N.’s founders.  [George Bush Presidential Library and Museum.  Address to the Nation Announcing Allied Military Action in the Persian Gulf.  19910-01-16.  url: http://bushlibrary.tamu.edu/research/public_papers.php?id=2625&year=1991&month=01.  Retreived 2013-2-1]

What is the United Nations exactly?  From the United Nations website [www.un.org], ‘The United Nations is an international organization founded in 1945 after the Second World War by 51 countries committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights.”  [UN at a Glance.  url:  http://www.un.org/en/aboutun/index.shtml. retreived 2013-2-1]] That sounds honorable and at the same time creates reasons for concern.  It really depends on how you define an international organization using resources for peace and security.  Is this concept that of sovereign nations working together for peace, or is this concept nations giving up sovereignty for an international rule of law as President Bush implied?  Does the concept of a United Nations threaten the sovereignty of a nation?  In the case of Libya in 2011 it sure as hell did, as the U.N. authorized the strike.  [Radia, Kirit.  United Nations Authorizes Strikes in Libya; Gadhafi Vows Offensive.  ABC News. 2012-3-17. Retreived: 2013-02-01]  Was the attack necessary for the security and sovereignty of the United States or merely a use of the U.S. military to enforce global humanitarian causes?  At the end of the day, the American people may just never have enough information to answer that question.  If the will of the people is to support any international conflicts the United Nations brings the United States into, then I assume there is no problem.  If it circumvents the will of American citizens who would vote not to put American lives at risk unless the sovereignty of our nation is at risk, then this may truly be a shift away from American democracy.  There are lots of shades of grey here, ultimately depending on how much power the United States cedes to international organizations such as the United Nations.

References to the strike on Libya bring us to the North American Treaty Organization (NATO).  Unlike the United Nations, NATO is an intergovernmental military alliance of 28 countries headquartered in Brussels, Belgium where its members agree to mutual defense in response to an attack by any external party. [North Atlantic Treaty Organization.  http://www.nato.int/cps/en/SID-727086F9-8E641654/natolive/what_is_nato.htm]    Article 5 of the Washington Treaty states;

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.  Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

So Libya attacked a member NATO country and NATO was required to respond?  Not at all.  The Libyan Civil War was an armed rebellion in 2011 in the large Libyan city of Benghazi that intended to overthrow Libyan rule by Muammar Gaddafi. [Libyan Rebels Pledge Free and Fair Election”. Reuters India. 29 March 2011.] [“A Vision of a Democratic Libya”. The Guardian (London). 29 March 2011. Retrieved 2013-02-01.]  The details of their civil war aren’t really necessary to the discussion.  Since no external country was involved in the conflict the uprising didn’t attack or threaten the sovereignty of any other nation.  So why did NATO ultimately strike Libya?  Is NATO policy really one of humanitarian causes or manipulating governments in foreign nations, or were they merely acting upon the will of the United Nations for one of those two reasons?  On the NATO website, they say this;

It is crucial to promote stability in regions where tensions pose security threats.  This is why NATO takes an active role in crisis management operations, most of them under a UN Security Council mandate.  [http://www.nato.int/cps/en/natolive/what_is_nato.htm.  Retreived;  2013-02-01]

Well, there you have it.  NATO also acts as the military arm of the United Nations Security Council.  I’m all for world peace if it is possible, but how did we go from a fear of standing armies to having a standing army that often serves the will of an international organization?   Who decides the appropriate outcome for a specific regional crisis?  For example, what if the United Nations decides that the United States Supreme Court’s rulings that firearms are an individual right and the subsequent possession of firearms by citizens of the United States poses a threat to the peace and security of the United Nations members overall?  I can see the benefits of organizations like the UN and NATO, but I can also see the extreme potential for abuse by such organizations to suppress the will of sovereign nations.  I can’t say I was a fan of Muammar Gaddafi by any means, but the UN and NATO certainly decided that the overthrow of the Libyan government was not only the proper avenue to resolve the regional crises but well within their mandated power to do so. Do you as a citizen of the United States feel the United States military should be used to decide the fate of a foreign nation’s civil war?  France did help us fight for our independence from Britain.  If we should take such measures, should the decision be made by the United States to do so or by a conglomerate of foreign nations with different sovereign interests?   My wife and I have fewer arguments if we don’t interject ourselves into other couple’s marital disputes.  It might be argued that there would be more world peace if the UN and NATO would not turn every regional conflict into a world conflict.

Homeland Security Act of 2002 was introduced after the September 11 terrorist attacks in 2001. It created the United States Department of Homeland Security under which a number of other agencies are consolidated, some of which are U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, Federal Emergency Management Agency (FEMA), Office of Cybersecurity and Communications, U.S. Coast Guard and the U.S. Secret Service.  Many of these organizations are used to exercise the power of the USA PATRIOT Act. The Patriot Act had been signed into law on October 26, 2001 prior to the Homeland Security Act.  The title of the act is a ten letter backronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The stated purpose of the Act is “To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” [Public Law 107-56.  From the U.S. Government Printing Office]  Don’t you just love those vague “and for other purposes” clauses?  Some argue the Homeland Security Act reduces privacy, increases government secrecy and strengthens government protection of special interests.  [“The Homeland Security Act: The Decline of Privacy; the Rise of Government Secrecy”. Bill of Rights Defense Committee. Retrieved 2013-01-02.] The scope of the Patriot Act is very broad under 10 different titles and a thorough coverage of the Act would require a book on its own so I’ll only touch on a few points.  It expands the definition of terrorism to include that of “domestic terrorism” enlarging the scope of the Act overall.  Section 412 allows for the indefinite detention of immigrants.  As a curiosity, do any of you know the exact status at this moment of the clause in the National Defense Authorization Act (NDAA) which addresses the indefinite detention of American citizens?  I’ll let you look that up yourselves.  The Patriot Act also covers restrictions on the movement of money and the reporting of financial transactions regarding all citizens.  If you take more than $10,000 in cash into or out of the United States you are subject to up to 5 years in prison, forcing many international transactions to be electronic.  Any domestic transactions over $10,000 are required to be reported as well.  It expands the scope of allowable surveillance through wiretaps and voicemail stored with electronic service providers.  One of the concerns is the National Security Letters which have been used to demand financial, credit and employment records of citizens, their library records and in some cases receiving health records.  Some elements of the Act have already been ruled unconstitutional by the Supreme Court, such as tracking devices used without a warrant in United States v. Antoine Jones and “sneak and peek” searches without a search order. [Keller, Susan Jo (September 27, 2007). “Judge Rules Provisions in Patriot Act to Be Illegal”. New York Times.] [Singel, Ryan (September 26, 2007). “Court Strikes Down 2 Key Patriot Act Provisions”. Surveillance, The Courts (Wired). http://blog.wired.com/27bstroke6/2007/09/court-strikes-2.html.]  The question is really one of whether we are strictly monitoring the activities of already known terrorists through violating their privacy, or are we violating the privacy of all the citizens of the United States in order to find out who the potential terrorists are.  If you feel that potentially unconstitutional measures should be taken to protect against potential terrorism and that you’ll never somehow be accused of being or supporting a terrorist or committing acts of domestic terror, then maybe you don’t think the Patriot Act is a cause for concern.  You’ve got nothing to hide, right?  If you feel that depriving citizens of constitutional rights to prevent acts that have yet to occur is a sign of an oppressive government, you’re probably terrified more of your government than any potential “terrorists” that dislike your government.  In Michael Moore’s movie Fahrenheit 9/11, Congressman Jim McDermott alleged that no Senator had even read the bill.  [Michael Moore, Fahrenheit 9/11 (documentary). Timestamp: 01:01:39–01:01:47]  How can you approve, let alone know the constitutionality of, something you haven’t read?  I haven’t signed a contract without reading it since before I was 18 years old…I learned that in High School.  Since some provisions of the Act have already been used against U.S. citizens and struck down as being unconstitutional, we would have to at least concede there is a justifiable fear of continued misuse of this Act in the future.

Another situation to address is one best described by Rachel Maddow in her book Drift:  The Unmooring of American Military Power. [Rachel Maddow.  Drift: The Unmooring of American Military Power.  Crown 2012]  In spite of an undeniable political skew for one party over another, Maddow seems to present a fairly accurate accounting of events that have not only moved the U.S. further towards a standing army over time, entirely against the ideologies of the Framers of the constitution, but how past President’s have found ways to circumvent the Constitution and effectively create wars without Congressional approval and without a whole lot of residual recourse from having done so.  President Reagan appears to have begun the trend by invading Granada with no Congressional approval.  Maddow sums up the trend in power shift stating, “By the time Bill Clinton left office in 2001, an Operation Other Than War, as the Pentagon forces called them, could go on indefinitely… without real political costs or consequences, or much civilian notice. We’d gotten used to it. By 2001, the ability of a president to start and wage military operations without (or even in spite of) Congress was established.”  She concludes that by the time of the 9/11 attacks, “the war-making authority in the United States had become, for all intents and purposes, uncontested and unilateral:  one man’s decision to make.”  So one man not only has autonomy over the militia and federal military in regards to events on our soil, but recent Presidents have also figured out how to circumvent Congress to have autonomy over committing the nation to war…or a military “operation other than war.”  Is this not at least evidence that preserving the right of defense against a powerful military, recently often shown to be controlled by the will of one man, isn’t at least a valid concern?  Who is it giving the orders for the U.S. military to conduct recent military exercises over major U.S. cities like Los Angeles, Miami and Houston? [Romero, Dennis.  Helicopters buzzing Downtown Part of Joint Military Exercises Supported by LAPD.  L.A. Weekly.  Url;  http://blogs.laweekly.com/informer/2012/01/downtown_military_angeles_helicopters.php. Retreived:  2013-02-01] [CBS Miami.  Military Training Exercises Keep Some S. Floridians Awake.  201-05-8.  Url:  http://miami.cbslocal.com/2012/05/08/military-training-exercises-keep-some-s-floridians-awake/.  Retreived: 2013-02-01]  [Willey, Jessica.  Army drill scares residents on Houston’s south side.  ABC Local.  Url:  http://abclocal.go.com/ktrk/story?section=news/local&id=8971311.  Retreived:  2013-02-01]   Is this from the Commander in Chief, or has someone else been given an exemption from the Posse Comitatus Act.  This isn’t the National Guard or the Coast Guard flying over these cities.

I have another question for you to ponder.  When the New Orleans Police and Louisiana National Guard disarmed the citizens by gunpoint after Hurricane Katrina [Stephen P. Halbrook. “Only law enforcement will be allowed to have guns: Hurricance Katrina and the New Orleans firearm confiscations” (DOC). George Mason University Civil Rights Law Journal], do you feel the action was in the best interests of the people overall as being defended by arguments that it prohibited racial violence from getting out of hand in the aftermath, or do you feel it was depriving those citizens of their Second Amendment rights to bear arms for their defense when they needed them most?

 

In Closing

From looking at historic events, it is clear the Framers of the United States Constitution adopted a number of principles from the English Bill of Rights of 1689, while also taking measure to prevent the United States from committing certain civil rights abuses inherent in the English bill.  We had also seen how the prohibition of firearms had been circumvented in England due to Forest and Game laws restricting hunting rights, and the King using power over the militia to enforce those laws to disarm the bulk of the people.  There seems to be no misunderstanding that most people in the late eighteenth century believed that the right to keep and bear arms was both an individual and collective right. which was also a natural right of man.  The Constitution acknowledges a need for a federal military and in an attempt to make the action of committing the nation to war more difficult gave the power to do so to Congress and not the President.  Since there was a general fear of a standing army due to historical examples of tyranny and oppression being committed by them, both the Constitution and the Bill of Rights helped to preserve the militia concept.  The Second Amendment gave the people the right to keep and bear arms for self defense and collective defense by the militia.  The Declaration of Independence not only declared an act of insurrection against the crown, it defined the conditions regarding when and why such a right exists.  In contrast, the Constitution provided protections against those committing insurrection, showing that insurrection was not held to be a right which needed no justification for its employment.  Are there any rights that could be taken away from you by the government which would make you feel the government was being oppressive and tyrannical; maybe freedom of speech or religion or possibly being deprived of your life without due process of law?  Unless your answer is an adamant “No” then you must concede there are times when insurrection is justified, just as the Declaration of Independence described.  If the will of the majority is being forcefully suppressed by a minority, insurrection may be an acceptable course of action at that time.

Over time we’ve seen how Congress has ceded power over the militia and the federal armed forces to the President, in some cases the President implementing actions that weren’t ceded to the Executive branch at all, creating a major shift in power among the three branches of the U.S. government; the Legislative, the Executive and the Judicial.  While the upper level courts seem to have not changed their opinion regarding the Second Amendment much over the years when you actually look at the core of their decisions, we’ve seen Congress take stronger actions regarding gun control as the courts have progressively strengthened and clarified the concept of an individual right to possess firearms.  We’ve seen Congress go from an Act requiring every free able bodied white male citizen between 18 and 45 being required to own a firearm; to restrictions on military style weapons such as machine guns, with the U.S. Government arguing a few years later that the Second Amendment specifically protects weapons used for military purposes exclusively; to Congress passing dramatic gun control laws in 1968 creating restrictions on ownership and extended restrictions on specific firearms, while suddenly shifting gears dramatically and suggesting the right of the people to possess firearms was mostly for “sporting purposes” and hunting; ultimately leading to a ban of what they decided should best be described as “assault weapons”, and a conclusion that military type weapons are not afforded protection under the Second Amendment.  Congress did this while progressively diminishing the ideology of the militia while absorbing a major portion of the state militias into the federal Army Reserve through legislation.

We’ve seen how the U.S. military has gone from a Congressional power to raise an Army when necessary and support a Navy, which the Framers felt was subordinate to the militia of the people; to a full scale standing army which Colonel Dunlap felt could not be defeated by the people; to the concession of some power over the U.S. military to organizations created by treaty such as the United Nations and the North Atlantic Treaty Organization, being used for global humanitarian purposes having nothing to do with the direct sovereignty of our nation.

All things considered, where does this put the right to bear arms today?  Recent Supreme Court decisions suggest the people not only have a Second Amendment right to own firearms, but to carry arms in public places with certain restrictions under the law.  We have not had time to see how these recent court decisions will affect individual state firearm laws.  Congress seems to think that certain types of “assault weapons” should be restricted suggesting they lead to violent crimes.  We’ll see if that argument is true in later chapters, or possibly just a wanton and causeless restraint of the will of the people.  Some of the actions we’ve discussed above do seem to leave a portion of society with fears that they will be disarmed at best, or worse their constitutional rights be oppressed by the government at worst.  Though those fears may not play out to their full extent through government actions, there does seem to be enough evidence to suggest that some civil rights are being denied such that a citizen might feel justified in securing his Second Amendment rights not only for self defense, but defense against an oppressive government.  Though there are many questionable issues going on in regards to the United States government as addressed above, there does not appear to be any clear evidence that our Democratic Republic has already failed suggesting any type of legitimate insurrection is in order.

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3 Comments on Exerpt: A Treatise on 2nd Amendment Rights in the 21st Century

  1. Dawson on Sun, 20th Jul 2014 2:46 am
  2. Sorry it took so long to get around to reading this piece but I wanted to be able to sit down and take it all in one sitting.

    I don’t know how many pages from your word processor, but I estimate it at about 108 pages (not including your additional necessary pages for things like appendixes, notes, glossary and index) which is already more pages then Lori Wallach’s most important little 88 page book I keep on my desk by my National Archives copy of The Constitution of the United States of America and The Declaration of Independence. Her little book I picked up just after I was called up to active duty for Homeland Security transferred from my Governor’s militia under my formal contract as U.S. Army Reserves, was called The WTO Five Year’s Of Reasons To Resist Corporate Globalization which I bought at the price of 88 pages for $5.95 in 2002 dollars.

    So I’d definitely say you’ve got a book.

    I could see walking into any gun store and seeing this displayed by the cash register and snagging a copy to take home to read.
    Matter of fact I’d like to make a form on my web site called something like, “Everything You always wanted to know about your 2nd Amendment Right to Keep and Bear Arms, but were afraid to Ask.” Then after just a short introduction about the author just add the link back to your (this) web site page.

    I made notes along the way as I was reading your book, and you did a remarkable job of pretty much answering every one. And I especially liked how you laid the whole thing out in chronological order. That to me is essential for a comprehensive understanding.

    I don’t think this needs much more than a good “polish” to clean up a few typos and maybe make a couple of paragraphs (out of 108 pages or so, not bad) easier to comprehend at first reading. I might suggest if it’s been several pages since you used an acronym you might write out the full phrase in (parentheses) after reusing that acronym just to refresh the reader’s memory (besides listing all acronyms in the glossary). I’d say you are ready to go to an agent, editor and publisher.

    Or start Hawk Publishing and self-publish both book and eBook.

    Now you only have 26 more Amendments, and 7 Articles of the Constitution and 1 Declaration of Independence to research like this and write another 34 books about in your series. LOL!!!

    I think I’ll send you a History book I’ve got taking up space around here on British and American Law.

  3. Doug Hawk on Sun, 20th Jul 2014 5:12 pm
  4. Thanks Dawson. I appreciate the advice. Didn’t really do a last pass through of the text, just figured I’d post some of what I had quickly. There are a couple of other chapters that are mostly complete, one is historical examples of how the laws have been applied and misapplied over the years. Had kind of given up on finishing it and seeking to publish it.

    Please feel free to link to this wherever you want. I just figured a lot of people might appreciate the chronological order of the issue, such as you suggest and there was no point in what was written going to waste.

  5. Dawson on Sun, 20th Jul 2014 9:23 pm
  6. You’ve got enough good material here to get published a “first edition.”

    You can always publish later “revised editions.”

    I’ll send an email with some Publishing ideas…my sister used to be President of Touchstone Publishing. LOL!!! Till she got Hot Pants for her Third husband and left the company for Thailand.

 





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