Musings on Amendment Two

The second amendment is a wonderful thing. This assertion would certainly be lauded by active, gun toting, sidebar readers like Dr. Phat Tony, JimmyB the CUG, TylerD of 45 Caliber Justice, Wyatt of SLYG, Difster and GunnNutt.

I fired my uncle's nine-millimeter pistol once. The ringing did not stop for about twenty minutes. It was nice of him to warn me. Since he was laughing his backside off, I am sure it was all part of the plan.

Personally, I do not own any firearms. I own two hunting bows and a couple of Japanese swords. I have never killed anything with either weapon. However, I am a firm believer in Amendment number two.

Here it is, in all its glory:

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.

Like many of my posts, this began with an argument by one of my liberal sounding boards. He argued that the first part of this statement, absolves the authorities of legal peril, when they ban guns on individuals. He was fired up, pardon the pun, about the recent San Francisco ban, DPT mentioned in this post. He insisted that gun possession must be permitted to local authorities, like police and National Guard. He said this does not guarantee the right of permission to individuals.

I felt it my duty to look at some of the language, used in the actual debate applied to our wonderful Constitution. I am talking about the Federalist papers and the Anti-Federalist papers. Why look at these documents? They represent some of the thoughts and materials, used by the founders, to argue the ratification of our Constitution. If you are going to argue the meaning of the founders, listen to them and their contemporaries.

Excerpts from The Federalist Papers

In the vast body of the Federalist papers, John Jay and Alexander Hamilton make a long winded case for a Federal government based largely on the struggles of interstate commerce and resemblance of those struggles to nation states of historical note, such as Roman conflict with Carthage, etc. Jay alludes to the success of the British Empire and its cohesive military power.

What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would?

Hamilton was a well educated man; a genius in fact. Had he and Jay had their way completely, state's rights would probably exist as a gossamer thready collection of associations. I dislike big bureaucracy. This would have been big. However, in glorious compromise, America turned out to benefit from the best of both philosophies, since Hamilton was right on when he said that a nation with no federal power and unity would breed enemies who would attempt to defeat us using the motto 'Divide et impera' or divide and command.

In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage.

Note that Hamilton discusses the benefit of having a State, aquiesce to a federal judgement, instead of using the sword (arms) to settle a dispute. Take note however, that he doesn't intend to censure the conduct of any State. He also puts the State's liberties in a similar category to individuals.

In essay 8, Hamilton addresses the distrust of standing armies directly. He clearly recognizes that the power of such armies will naturally progress towards monarchical or total executive power over the government and people.

The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. [1] Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defense, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction toward monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.

Hamilton really begins to make the case for a free, armed citizenry in this passage.

There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have a good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defense, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an over-match for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people.

Yes, you read that right. Hamilton says that a small army, or militia, encourages the natural strength in citizens to defend themselves. The small Militia is a useful tool of the magistrate to suppress small factions, or mobs, or insurrection.

This sounds just like the proper job of the police, doesn't it?

He also wraps it up with the assertion that this power deprived militia, will not be able to encroach upon the rights of the united body of the people. Why? Because the people can defend themselves, in the comfort of their arms, from this encroachment, that's why! This figures big in my conclusion.

Hamilton's subsequent paragraph, rejects the powerful military state, as one that loses all civil priority and degrades the living conditions and liberties of its citizens.

In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

Once again, in the following paragraph, in the Queen's plain english, Hamilton make's the point for a citizenry, capable of defending itself.

The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite.

Since the 'militia' is not the primary subject in this last sentence, I am free to assume he meant the people, when he talked about that sufficient force. He may have meant the small army, unable to encroach on the united people; a temporary wall against an invader. In this case it still figures into the concept of a controlled militia. In fact, any force, intending to rally and embody itself, will need to draw on the skills of the people.


Excerpts from The Anti-Federalist Papers


A FEDERAL REPUBLICAN makes an argument against the power of a Constitutionally ratified federal government to march on you, with a Militia, to suppress your occassional free struggles. I am sure this concern led to Posse Comitatus .

...congress, by this new government, will be invested with the formidable powers of raising armies, and lending money, totally independent of the different states. They will moreover, have the power of leading troops among you in order to suppress those struggles which may sometimes happen among a free people, and which tyranny will impiously brand with the name of sedition.

A FEDERAL REPUBLICAN makes another great point regarding Federal judiciary power used against you. Not just, for gun rights, but for ALL your rights. Notice how he grieves over the kind of judicial and legal harrassment, that can be used as a weapon against you. (Cough.. nuisance lawsuits) It wears you down mentally and financially, until you give up your rights.

Should the sheriff or state collector in any manner aggrieve you either in person or property, these sacred rights are amply secured by the most solemn compact. Beside, the arm of government is always at hand to shield you from his injustice and oppression. But if a Continental collector, in the execution of his office, should invade your freedom (according to this new government, which has expressly declared itself paramount to all state laws and constitutions) the state of which you are a citizen will have no authority to afford you relief. A continental court may, indeed, be established in the state, and it may be urged that you will find a remedy here; but, my fellow citizens, let me ask, what protection this will afford you against the insults or rapacity of a continental officer, when he will have it in his power to appeal to the seat of congress perhaps at several hundred miles distance, and by this means oblige you to expend hundreds of pounds in obtaining redress for twenty shillings unjustly extorted? Thus will you be necessarily compelled either to make a bold effort to extricate yourselves from these grievous and oppressive extortions, or you will be fatigued by fruitless attempts into the quiet and peaceable surrender of those rights, for which the blood of your fellow citizens has been shed in vain.

This is exactly how the liberals use the Federal court system. This is why the SCOTUS ruling on private property should scare the crap out of you. This is why you should never give up your rights, by apathy.

In this passage, AN OBSERVER notes that big government, in general, should be distrusted, when it comes to protecting the rights and property of individuals. He obviously does not believe in government controlling people's right to arms.

....It deserves also to be remembered, that the people of Scotland, in the late war between France and Great Britain, petitioned to have arms and ammunition supplied them by their general government, for their defense, alleging that they were incapable of defending themselves and their property from an invasion unless they were assisted by government. It is a truth that their petitions were disregarded, and reasons were assigned, that it would be dangerous to entrust them with the means of defense, as they would then have it in their power to break the union. From this representation of the situation of Scotland, surely no one can draw any conclusion that this country would derive happiness or security from a government which would, in reality, give the people but the mere name of being free.

I digress...

...This hobgoblin appears to have sprung from the deranged brain of Publius, [The Federalist] a New York writer, who, mistaking sound for argument, has with Herculean labor accumulated myriads of unmeaning sentences, and mechanically endeavored to force conviction by a torrent of misplaced words. He might have spared his readers the fatigue of wading through his long-winded disquisitions on the direful effects of the contentions of inimical states, as totally inapplicable to the subject he was professedly treating; this writer has devoted much time, and wasted more paper in combating chimeras of his own creation...

I am truly sorry. This excerpt just sooo tempted me to replace 'Publius' with ''Maureen Dowd'. Ahem. Ok, back to the subject at hand.

Here, MONTEZUMA writes a biting sarcastic piece on the powers of a federal government. Take note, the crushing of insurrections with a noble body of veterans (Militia).

....We have so interwoven continental and state legislatures that they cannot exist separately; whereas we in truth only leave them the power of electing us, for what can a provincial legislature do when we possess the exclusive regulation of external and internal commerce, excise, duties, imposts, post-offices and roads; when we and we alone, have the power to wage war, make peace, coin money (if we can get bullion) if not, borrow money, organize the militia and call them forth to execute our decrees, and crush insurrections assisted by a noble body of veterans subject to our nod, which we have the power of raising and keeping even in the time of peace. What have we to fear from state legislatures or even from states, when we are armed with such powers, with a president at our head?

I love the way he ends his piece.

Signed by unanimous order of the lords spiritual and temporal.

In this piece, BRUTUS takes Hamilton on directly, arguing that even a small standing army is unnecessary, if you propose to trust the people to defend themselves from encroachment.

Besides, if the habits and sentiments of the people of America are to be relied upon, as the sole security against the encroachment of their rulers, all restrictions in constitutions are unnecessary; nothing more is requisite, than to declare who shall be authorized to exercise the powers of government, and about this we need not be very careful-for the habits and principles of the people will oppose every abuse of power. This I suppose to be the sentiments of this author, as it seems to be of many of the advocates of this new system. An opinion like this, is as directly opposed to the principles and habits of the people of America, as it is to the sentiments of every writer of reputation on the science of government, and repugnant to the principles of reason and common sense.

An OLD WHIG ends his entry in the Massachusetts Gazette with this paragraph.

Before we establish a government, whose acts will be the supreme law of the land, and whose power will extend to almost every case without exception, we ought carefully to guard ourselves by a bill of rights, against the invasion of those liberties which it is essential for us to retain, which it is of no real use for government to deprive us of; but which, in the course of human events, have been too often insulted with all the wantonness of an idle barbarity.

He got to see that bill of rights. It should be noted that the Bill of Rights was demanded by, many, who saw it necessary to enumerate those rights, against government authority. The second amendment is enumerated number two.


WMD

The founders would probably be horrified by WMD and the morality of is necessity and use. This does not mean they intended people to have the right to bear WMD. This is not a slippery slope point of weakness in Amendment number two. Nobody is going to protect his or her individual home or family with a nuke or canister of Anthrax. The term bear arms, implies personal protection. WMDs are weapons of national defense, intended to harm nations. I am sure the founders did not intend individuals to be individual threats to entire nations.

Insol's Opinion

I know this has been a long post. There is much more material than I cite here. Please go read it. It is your American History.

Perhaps I have not seen enough evidence, but I suspect that the founders and their contemporaries believed in the incontrovertible right of individuals, to bear arms. If I were to interpret the second amendment, based on the above material, specifically Alexander Hamilton's argument in Federalist 8, here is a summary of the main points.

• Hamilton recognized that a dissolved confederacy would breed standing armies, which might resort to the use of the sword, between feuding states.
• Hamilton recognized that an overall military power, with too much authority, could easily result in a military totalitarian state.
• Hamilton argued, for the natural strength of a community, with a healthy distrust of a small militia, chartered only as a 'necessary evil', to mitigate mob violence an insurrection (police power).

I hope it is painfully obvious what this part of Amendment two means, in the context of Hamilton's federalism:

A well regulated Militia, being necessary to the security of a free State,

It means the exact opposite of my liberal friend's argument. Regulated does not mean armed, trained and disciplined. It means exactly what you expect it to mean: controlled. It means that the militia needs to be regulated like we regulate voltage or water pressure, to keep it from turning the federal government into a military power. It needs to be controlled, to insure the security of the people and their free State. How is this accomplished?

the right of the people, to keep and bear Arms, shall not be infringed.

That's how.


I am fairly convinced that most of the Anti-Federalists, would have been happy to accept the latter without any rationale, regarding uncontrolled military power. Of course, we know the federalists had to provide one, and they did.

Are we really in danger of a military or foreign tyranny? Perhaps not. But this does not give a judge or a legislator the power to remove this right. Clearly, when it comes to personal arms, with the intention of protecting your life and your personal property, both sides of the Constitutional debate recognized the need for this Constitutional right.

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