This weekend former Justice John Paul Stevens wrote an opinion, to publicize his new book, in the Washington Post to address one of the six amendments he recommends to the Federal Constitution. Namely, he believes that the inclusion of five words to the Second Amendment would correct what he perceives as misunderstandings and misinterpretations of the supreme Court over the last few decades. It is his contention that the inclusion of those five words would bring the Second Amendment back to the original intent of our Founding Fathers. His prescribed solution is to add the words “when serving in the Militia” so that the Second Amendment would read like this:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.
His prime argument reads as follows:
For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
which demonstrates an ignorance or a misinterpretation of the history of the Second and its development or an agenda in alignment with the the extreme left Democratic view that life would be more civil if only we could just get rid of all the guns in civilian hands. Before I hear any debate to the contrary, as to whether the Democrats want to take our guns or not, let me remind you that the Democrat, Senator Diane Feinstein of California, said essentially just that in 1995 when she successfully got her “assault weapons” ban passed that same year.
Before we dive too deeply down this rabbit hole, we need to understand one simple thing. The First Amendment and the Second Amendment are intricately tied together. The natural rights of freedom of conscience and self defense walk hand in hand. These were perceived as natural rights by our Founding Fathers who were greatly influenced by John Locke’s second of Two Treatise on Government. Writings that got little traction in 1689 when he published them anonymously, but had been republished in 1773, just in time to influence Thomas Jefferson and committee when they wrote our Declaration of Independence. Mr. Jefferson, who penned the draft, was so impacted by Mr. Locke that we find such phrases as “long train of abuses” were lifted directly from Mr. Locke’s writings. I’ll be delving more deeply into natural rights in my forthcoming book, Unalienable Rights.
Now, down the rabbit hole!*
First, we are going to return to 1689 to the Bill of Rights of 1689, as it is known. The Bill of Rights of 1689 was the law of the land in the colonies since the colonies were subject to and subjects of the Crown of England, specifically King George III. It was this very Bill of Rights that the Founding Father, John Adams, was referencing when he defended Captain Preston and his soldiers in 1770 for their part in what has now become known as the Boston Massacre. His argument that every British citizen had the right to be armed in their own self defense won the day when he asked the jurors to put themselves in the soldiers position had the situation been reversed. In other words, what would be their judgment be had it been the British soldiers harassing, intimidating and taunting the civilian crowd. To quote Mr. Adams:
“Here, every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had the right to arm themselves at the time, for their defense, not for offense.”
After the Second Continental Congress met and declared independence from Great Britain, the colonies became 13 separate nations. Each passed laws of receivership, affirming their own form of the common law as a continuation of the common law from England. While this meant that there were 13 separate versions of that common law, they each had the Bill of Rights of 1689 as their universal root. It wasn’t until the adoption of the Articles of Confederation and Perpetual Union in 1781 that the United States came into being as a single nation.
The Commonwealth of Virginia was the first of those tiny nations to draft a Bill of Rights. With assistance from James Madison on religious freedoms, the first draft of the Virginia Declaration of Rights was created by George Mason, who was clearly inspired by the Bill of Rights of 1689. That draft then went to committee and the committee’s results were soon published in one of Philadelphia’s predominate newspapers. Soon thereafter, it was picked up and published throughout the colonies and influenced each State’s own Bill of Rights. In the committee draft of Virginia’s Declaration of Rights we find that Article 15** addresses the militia and reads:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence(sic) of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
Thus far we have established the natural right of the people to own weapons for their own self defense and the right of those same people to establish and train as a militia in defense of their community and State. All of this is well before the Federal convention of 1787 that drafted the Federal Constitution. In conjunction with the actions of the citizens of Massachusetts in 1775 as they stockpiled weapons, powder and supplies in Concord we can see the foundation of originalist thinking among the colonists.
After the Convention of 1787 the proposed Federal Constitution was sent to the States for ratification. The soft spoken pipsqueak that was James Madison out-debated the blustery Patrick Henry, who opposed the Federal Constitution, to get the ratification for the Commonwealth of Virginia. None-the-less, the Virginians insisted that amendments be presented to the new government to assure the people that their new government wouldn’t run roughshod over the people’s natural rights. The Virginians weren’t the only ones dismayed by the lack of protections in the new Constitution, many other States were as well. Many sent along their desired amendments and eventually, in what became known as the Massachusetts Compromise, the Federal Constitution was ratified by its own directive. (In violation of the law of the land under the Articles of Confederation and Perpetual Union.)
Now, Mr. Madison*** argued in vain against any amendments. He felt that the opening clause of the Federal Constitution, We the People, made the peoples’ sovereignty self evident and that an enumeration could be construed as limiting the peoples’ rights to that enumeration. He did, however, relent to the pressure and promised to present amendments to the First Congress of the United States when he ran to represent Virginia; Patrick Henry having already squeezed Mr. Madison out of an appointment to the Senate.
True to his word, Mr. Madison presented his amendments to a reluctant Congress. It is here that we resume following the lineage of our protections against incursions by the Federal Government. In clause four of his original fourth amendment in his presentation to Congress he proposed the following wording:
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.
His proposed amendments went into committee and came out with slightly different wording. It was presented as part of an addendum to Article I, Sec 9 clause 3 as :
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.
From out of the House of Representatives it became Article the Fifth and said;
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 of bearing arms, shall be compelled to render military service in person.
Sent to the Senate it became Article the Fourth and it reads in the familiar:
A well regulated militia, being the best security of a free State, the right of the people to keep and bear arms, shall not be infringed.
Finally going to the States as such and ratified as the Second Amendment.
As for Stephens’ contention that the States were never intended to be limited by our Second Amendment, aside from evidence to the contrary, his reasoning is ludicrous on the face of it. Why would they have allowed the States to diminish their rights after forbidding the Federal government to do so?
We have already seen, through the Virginia Declaration of Rights, the peoples’ ensconced right to form militias and by extension of influence, the other States that had followed suit. We, further, have the arguments in the Federalist Papers espousing the States’ responsibility to defend the peoples’ natural rights from incursion by the Federal government. Yet no parallel can be more clearly seen with the current efforts to disarm us than George Mason’s statement at Virginia’s ratification convention when he said;
“When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually.”
We have the benefit of our clearer vision of history in the recent 20th century, than our Founding Fathers did in reading over 2000 years of history. When we look outside of our nation, we can see how the people of Great Britain, Australia and Canada were disarmed, in exactly the same decade that Senator Diane Feinstein was able to temporarily put a damper on our natural right of self defense. These same tactics were used in Nazi Germany to disarm their populace; first through registration and then confiscation. This did not turn out well for the Jewish population of, first Germany, then the disarmed populace of Poland nor the rest of the unfortunate Jewish population of Europe.
Are we expecting beneficent dictators from a government that has already demonstrated that it cares more for the wealthy than it does for We the People? Remember, the German populace elected Adolph Hitler, just as we have elected our current President, Barack Obama, who wields the pen of Executive Order like a King. Just as we elected the Decider in Chief, George W. Bush before him, and Mr. Bill Clinton before him, and George H.W. Bush before him. Every one of them, slowly diminishing our rights and influence, not openly, but quietly weakening us and letting us sink gradually…
Our Founding Fathers knew exactly what they were doing when they formed our new nation. It took them a couple of tries to form a suitable government; one that would be hard, but not impossible to dismantle. Our avowed Father of the Constitution, James Madison, even warned us how they would likely do it when he said;
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”
“I believe there are more instances of the abridgement(sic) of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”
“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.”
*You’ll often find much of what I reference can be confirmed at http://loc.gov/. (LOC being the acronym for the Library of Congress.)
**You can find the committee draft here.
***James Madison and the Struggle for the Bill of Rights -Professor Richard Labunski