More Historical Bull on the Second Amendment

More Historical Bull on the Second Amendment

via Allergic to Bull by A.W. on 1/11/13

Here's another lovely piece from the left resorting to distortions and outright lies in an attempt to justify destroying the right to bear arms.  It is a common trope of the left to pretend, for instance, that the Second Amendment is purely about militias.

Let's pull up that amendment's language, shall we?

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.

So what anti-gun liberals do here, is they say that the militia clause limits the right to bear arms.  Now Justice Scalia does a masterful job of ripping it apart in D.C. v. Heller, but let me give you a smaller sample.  In my eyes it is obvious that the militia clause in an inoperative preamble—that is pretty words inserted into the amendment to explain why they give a crap, but not meant to limit the rest of it.  After all, if they wanted to limit the right to bear arms to those in a militia, wouldn't it say something more like this?

The right of the people to keep and bear Arms, in a well regulated Militia, shall not be infringed.

Or perhaps this:

The right of the people to keep and bear Arms, in a well regulated Militia, shall not be infringed, nor shall it be infringed in going to, or returning from the same.

That borrows a little language from the part of the constitution offering a limited privilege from arrest to Congressmen (Article I, Section 6, Clause 2).  The fact is the founders knew how to limit rights and privileges when they needed to.  For instance, the First Amendment doesn't protect simply the right of assembly.  Instead it only protects "the right of the people peaceably to assemble" (emphasis added).  So a peaceful demonstration is protected by the Constitution, a riot is not.  The Thirteenth Amendment eliminated slavery, "except as a punishment for crime whereof the party shall have been duly convicted."  And for that matter the privilege offered to Congressmen preventing them from being arrested I just mentioned, is limited, too.  Here's the full text.

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same[.]

So if you are a Congressman you cannot be arrested at Congress, or on your way to or from it, unless it is for Treason, a Felony or Breach of the Peace.  And that exception is pretty dang important.

So the founders knew how to limit Constitutional rights.  So why on earth didn't they write something as simple as what I suggested, making the militia language a clear limitation on the right to bear arms?  Why didn't they just say that?

One other objection is that ordinarily language in the Constitution is not considered inoperative.  Now of course the actual preamble to the Constitution ("We the People…" and so on) has long been understood as simply pretty words.  So anyone who cites "the general welfare" in support of a given law doesn't know what they are talking about.  But still, to have inoperative language might at first seem out of place in the rest of the Constitution.

And then you might read Thomas Davies' tour de force about the original intent of the Fourth Amendment and realize that there are in fact two amendments in the Bill of Rights that were meant to be read as having a preamble.

Seriously, go read it.  It's a classic and it will change forever how you look at the Fourth Amendment.  I'll wait.

But all that is just lead in to get to this pieceI found on a blog north of the border in Canada.  Now I am not emphasizing the Canadian sourcing of this material to cut it down, but there is a very strong, "we are Canada, not America!" part to his argument later in the piece, so it is relevant that his indeed a Canadian, and not an American.  It's entitled: "Freedom From Gun Terror: Why Understanding American History Can Help Keep Canadians Sane."

Yes, of course in the Orwellian left, taking away the rights of citizens is a matter of freedom.  Sigh.

So it starts with some introduction claiming that gun control is coming to America (fat chance), and how it is brought on by the Sandy Hook massacre.  Then it gets into the meat of things:

One useful aspect of this harsh debate has been the exposure of a popular misreading of the Second Amendment to the U.S. Constitution, that "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."

It is simply nonsense to suggest, as has become the conventional wisdom in the circles that advocate gun proliferation, that the intention of the Founding Fathers of the American Republic was to encourage the placement of a firearm in every household as a tool to enable the overthrow of the state should tyranny take root.

This is a preposterous and perverse – and in many cases, quite intentional – misreading of the intention of the Fathers, which is quite clear on the face of the words of the Second Amendment.

Indeed, the purpose of the Second Amendment, which took effect on Dec. 15, 1791, with the other nine amendments that comprise the Bill of Rights, was the preservation of the nation and its government, tyrannical or not.

Ah, so the purpose of the Second Amendment is to protect a tyrannical government from rebellion.

Well, let me give you a thoughtful response to that.

Okay, let me actually give you an actual thoughtful response to that.

Oy, there is so much wrong with that it is hard to know where to begin.  First, if there is anything preposterous about it (which sparked my laughter), it is the idea that the Bill of Rights was designed to protect tyranny.  James Madison and other advocates of the Constitution initially thought the Constitution was fine just as written—that no amendments were needed.  But those opposed to the Constitution constantly pointed out a lack of a Bill of Rights.  If you read this prior post, you know that the English had their own Bill of Rights were had already cribbed off of when writing our Declaration of Independence.  These Bills of Rights proliferated among the states, either standing separately or embedded in their constitutions, and it was asked by the Anti-Federalists why we didn't have one.  They hammered them with the point: "why isn't there a Bill of Rights?"

Initially, Madison himself thought that a Bill of Rights might actually do harm.  He felt that every limitation on the government likely to be in such a Bill of Rights was already implied.  Like for Freedom of the Press, Madison would say, "the Freedom of the Press is protected because the Federal Government is not empowered to regulate the press in the first place.  So there is no danger."  But over time Thomas Jefferson worked on him and eventually he decided that it was better to explicitly protect some rights, than to risk an interpretation that would imply none of them were protected.  So he and other advocates of the Constitution promised publicly that if the Constitution was ratified the first order of business would be to amend the Constitution to include a Bill of Rights.

Incidentally, his fear that by explicitly providing for some protections would imply others would be denigrated was the very foundation of the Ninth and Tenth Amendments.  Here's what he said originally when introducing the Bill of Rights:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

And if you scroll through the same speech to the part he is referring to, you can see the embryonic beginnings of the Ninth and Tenth Amendments:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It doesn't look very much like the final product, but I think you can see that the intent behind it was similar.

So the Bill of Rights was urged by people who initially opposed the Constitution.  This opposition was not based on the Federal Government not being strong enough.  Instead it is based on the fear that the Federal Government would become tyrannical.  As Justice Marshall wrote in Barron v. Baltimore:

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government[.]

(Emphasis added.)  That's the history we are talking about, folks.  The Fifth Amendment—and by extension the entire Bill of Rights—was about restraining the Federal Government, and emphatically notgiving it more power.  Like or hate it, that is what the history and the amendments themselves tell us.

Alas, this blogger goes on:

That is not to say the Founders favoured tyranny, and least of the monarchial sort. But since the new United States had both powerful enemies encamped right upon its doorstep – and that would be here in Canada, my fellow citizens – and an instinctive distrust of standing armies based in the circumstances of its birth, the Fathers deemed it necessary to possess a well-regulated militia to ensure the security of their new nation. The secondary clause of the Amendment defines the mechanism for making the militia effective – principally, to ensure its swift mobilization and deployment in the event of a threat to the new country.

So in his vision was that the purpose of the second clause of the Second Amendment was to help the Federal Government to arm itself?  Why would that even be needed?  There is already a clause allowing for that!  It's in Article I, Section 8, declaring that Congress has the power "[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States[.]"  So the Federal Government is already empowered to arm the militia!

The only way that interpretation makes any sense is if 1) the founders wanted the militia to be armed primarily by private ownership of weapons, and 2) they were afraid the states would attempt to prevent that.  In other words, it only makes sense if this was intended to be a limitation on the states and not the Federal Government.

Oh, except for one thing.  Remember that Barron v. Baltimore case I just mentioned?  Well, you might have noticed that I cut out a little from the very last line of that paragraph.  Well, let me fill that in:

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government — not against those of the local governments.

In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.

In other words, Marshall, who was in the founding generation, was telling us what I just told you: the Bill of Rights was about restraining the Federal Government and they did not apply to the states.  If a state law infringed on your freedom of speech, in 1834, if you claimed the Federal Constitution was violated the courts would say you were out of luck.

Now before supporters of the right to bear arms (or civil rights and liberties generally) get worked up about this, I will point out that this is no longer the case.  This is not something I think the general public understands, but the Fourteenth Amendment to the Constitution was designed, in part, to "incorporate" the Bill of Rights to the states.  So when you say a state is violating your "First Amendment rights" what lawyers say is, "the First Amendment as incorporated to the states by the Fourteenth Amendment."  Or truthfully, they very often skip that part, but you know what I mean.

Now I think that this was supposed to be an all or nothing proposition—that is all of the Bill of Rights were supposed to be incorporated to the States—but the Supreme Court so far has not agreed, picking and choosing which rights to apply.  So for instance, in the Federal context, all criminal trials have to be conducted with twelve person juries, while state-based trials do not.  And I don't believe I have ever seen a case incorporating the Third Amendment relating to the quartering of soldiers to the states, although to be fair, I don't think the Third Amendment has been applied, at all, in any court case (because there has never been a violation of it that inspired a lawsuit).

And yes, the Supreme Court has ruled that the Second Amendment applies to the States in this case.

Alas, the blogger goes on:

That aristocratic old federalist and tax-raiser George Washington, of all people, would laugh through his wooden teeth at the suggestion the new Republic needed to be populated by an armed rabble that could rise up on a moment's notice and overthrow its government, which in the late 18th Century was made up of people some of us might dismiss in 2012 as "the 1 per cent."

Gotta love the Occupy reference.  But two responses to that.  First, is he saying that he didn't believe in the right of rebellion?  George Washington?  Really?  Second, even if it was proven to be the case (fat chance), Washington didn't write the constitution.  He didn't even get a say in the Bill of Rights, at least not more than any other voting American at the time.

But really it is a bare assertion of fact that somehow it was too absurd to believe Washington would believe in the right of rebellion, and I don't think that is exactly self evident.

Of course, toward the beginning, he does quote Washington as putting down the military effectiveness of the militia.  When I was reading up on Washington some time ago, I recall him making many comments and taking many actions to the effect that he didn't think much of the militia as a military force.  But if anything, doesn't that cut down on this blogger's point?  How much of a threat to the republic would the "rabble" be in Washington's mind, if he thought so little of them?  And while Washington might have felt that his professionally trained soldiers were better than the unprofessional militia, that didn't mean he had no respect for their work in the beginning of the American Revolution.  He was likely to expect that at first rebels would be disorganized and untrained, and then as the rebellion went on to become more professional as his soldiers did at places like Valley Forge.

Oh and then there is the small matter of how Washington actually signed a lawrequiring "every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years" to be enrolled in the militia and buy for himself a gun.  (That is the Militia Act of 1792.)  If he was scared the "rabble" might take over if they were armed, he had a funny way of showing it.

Also I didn't miss that our blogger from up north also wrote that "This is a preposterous and perverse – and in many cases, quite intentional – misreading of the intention of the Fathers[.]"  So his approach in his mind was so obvious that any other interpretation was downright preposterous and indeed many of the people advancing the view that Second Amendment protects a right to bear arms are doing so dishonestly.  I suppose that would include the Supreme Court.

No, to bring this into a big picture for a moment, what is preposterous is to suggest that the Founding Fathers, having just thrown off British tyranny in a war sparked by an attempt to take our arms at Lexington and Concord, would turn around and give up those arms in the face of a new government when they openly expressed the fear that it would become tyrannical itself.

Anyway, the rest of the article is about opposing the rise of gun rights in Canada.  And while I generally support the right to bear arms everywhere, I'll let the Canadians fight their own battle (of words) on this one for now.

By the way, as is often the case, this led to a discussion with the author on twitter:

Freedom from gun terror: why understanding American history can help keep Canadians sane - bit.ly/V0CctJ #cdnpoli#guncontrol
— David Climenhaga (@djclimenhaga) January 11, 2013

Really? The ppl opposed to the const insisted on a 2nd A to make the Fed Gov stronger? what claptrap @djclimenhaga
— Aaron Worthing (@AaronWorthing) January 11, 2013

@aaronworthingDo you seriously think George Washington wanted an armed rabble to hold his new country hostage? Talk about claptrap!
— David Climenhaga (@djclimenhaga) January 11, 2013

I think George Washington believed in--and practiced--the right of rebellion. @djclimenhaga#NoWayNRA#GUNCONTROLNOW#guncontrol
— Aaron Worthing (@AaronWorthing) January 11, 2013

Oddly, he hasn't responded.