Debate Magazine

D.C. v. Heller: Was Scalia Honest with the Facts?

Posted on the 03 September 2011 by Mikeb302000
I decided to see what else the Federalist Blog had to say about the Second Amendment and came up with this. I know you like to try and get me to think that I am the only person who holds these opinions, but I hate to break it to you. Take it away, P.A. Madison!

by P.A. Madison on July 16, 2008

in 2nd amendment

    • “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” –Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

The recent Supreme Court ruling in District of Columbia v. Heller caught me by surprise by how far the majority, lead by Justice Antoin Scalia, were willing to go to make a case for a broad individual right under the Second Amendment. While plaintiff prevailed under a starkly divided court, the majority failed to provide any clear and convincing evidence to support their claim for a protected individual right. Instead, Scalia presents strained, forced constructions that often were self-contradicting, and seemingly, served only to favor the majorities’ own prejudicial ideal of what keeping and bearing arms should mean.

For example, Scalia writes like the “First and Fourth Amendments, codified a pre-existing right,” and the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’” Later, however, he declares “there seems to us no doubt” the Second Amendment “conferred an individual right to keep and bear arms.” Which is it, recognition of a pre-existing right or does it directly confer the right?

Clearly the majority subscribed to the view that yes, the right to keep and bear arms are words associated with military service, but these words can also be read to mean more than citizen soldiers keeping of arms to bear in the service of a militia.

Scalia explains the “Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.” Additionally, Scalia adds this prefatory clause acts as a “clarifying function,” and “does not limit or expand the scope of the operative clause.”

One must wonder why, if the prefatory clause acts as a “clarifying function,” the court is adjudicating a District of Columbia gun regulation that does not directly cause any lawfully organized State militia to be disarmed. The prefatory clause remember, speaks only of a well regulated militia being necessary to the security of a free State and not of any private right for individuals to privately keep or use firearms for any purpose.

According to the majority, the answer is because “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.” Thus, the majority thinks reading the Second Amendment as “protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as ‘the people.’” Therefore, the majority begins with the “strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

Would this mean no one could have ever been compelled to bear arms in the service of the militia because the right can only be exercised individually? Obviously, that prefatory clause is not so clarifying after all.

Perhaps this above so-called explanation is why Scalia felt it was necessary to speak of the Second Amendment as indeed directly conferring a right rather than simply recognizing a reserved right of the people under their State sovereignty to form armed militias. However, if the Second Amendment confers an individual right having nothing to do with service in the militia, one naturally might wonder why a republican form of government was chosen, complete with separate constitutions with their own bill of rights?

Furthermore, if the prefatory clause were to be viewed as dead letters, and limiting national powers ignored (as customary these days), the operative clause would have to be read as an absolute right because the right is unconditional with no exceptions. A law against carrying concealed weapons would be unconstitutional because the right to keep and bear arms alone says nothing about government authority to encroach on the right of people to keep or carry any type of arms.

And the majority did indeed treat the prefatory clause as dead letters when it wrote the “banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family, would fail constitutional muster.” To keep guns at home by private choice and for private use has nothing to do with service in the militia under State militia laws. Perhaps if State law made it compulsory for citizens to keep certain arms and ammo at home for use when called to militia service as some once did, and local laws banned keeping those weapons, such a law could well be struck down under State armsbearing amendments.

Therefore, the amendment obviously does not itself confer anything to anybody except declaring Congress possesses no power to infringe a free people’s right to form and maintain armed militias for common security under lawful authority. Otherwise, there could be no regulation by law for the keeping or carrying of guns under most armsbearing language found in State constitutions.

The State of New York under clause three of its Bill of Rights, adopted nearly identical language as the Federal Second Amendment. However, under clause four, citizens could not on their own “find soldiers or men of arms, either horsemen or footmen, without the grant and assent of the people of this state, by their representatives in senate and assembly, except in the cases specially provided for by the constitution of the United States.” This clearly recognizes the keeping and bearing of arms to those arms used for the collective arming of bodies of men.

To show how poorly the operative clause fits with the prefatory clause, Scalia tries to convince us the right to keep and bear arms under the Second Amendment was understood to have broad meaning beyond arms of the militia: “In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”

The problem here, though, is the prefatory clause does not address other “numerous instances.” Citing the majorities own cited source, William Rawle, the right to bear arms is “corollary” to the proposition of a well-regulated militia as necessary to the security of a Free State. The majority accepts the meaning of a “well-regulated” militia to mean “nothing more than the imposition of proper discipline and training,” yet on the other hand, they suggest to bear arms can only be “exercised individually.”

The majority goes on to insult readers reading comprehension by quoting such legal scholar’s as J. Pomeroy, Story, Cooley, and others, in supporting their view that bearing arms was not understood to be connected to service in the militia. Scalia quotes Thomas Cooley as saying the “alternative to a standing army is ‘a well-regulated militia’; but this cannot exist unless the people are trained to bearing arms.”

Question: Was keeping a handgun for personal self-defense ever considered part of a training regime in bearing arms under a well-regulated militia?

The expressions Scalia quotes from legal scholars attest only to the long held principle of keeping and bearing arms found under the Second Amendment as those arms normally used by a well-regulated militia, and for which are necessary and suitable to a free people to aid them in resisting oppression, usurpation, repel invasion – not those arms used for purposes of committing bank robbery, shooting rabbits or home intruders.

Scalia quotes from J. Pomeroy, but omits his conclusion of the object behind the Second Amendment: “The object of this clause is to secure a well-armed militia.”

The majority thinks their “interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.” They count two (Pennsylvania and Vermont), and possibly two more, State Constitutions they feel might be analogues to the Federal Second Amendment. They allege Pennsylvania and Vermont “clearly adopted individual rights unconnected to militia service.”

The Pennsylvania Constitution read “The right of the citizens to bear arms in the defence of themselves shall not be questioned,” while the Vermont Constitution read: “That the people have a right to bear arms for the defence of themselves and the State–and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.”

The majority commits a significant error in ignoring other clauses in these constitutions that use the phrase “bear arms.” Under Article 9 of the Vermont Constitution no man “who is conscientiously scrupulous of bearing arms, be justly compelled thereto.” Article VI, Sec. II of the Pennsylvania Constitution read: “The freemen of this commonwealth shall be armed and disciplined for its defence. Those who conscientiously scruple to bear arms shall not be compelled to do so; but shall pay an equivalent for personal service.”

The fact these Constitutions attach a strong military association with bearing arms for defense leaves little doubt what the employed words mean. Scalia could respond by suggesting “bearing arms” meant several different things depending on the context the phrase is used – but this path would run into a thick wall.

Scalia suggests Justice James Wilson interpreted the Pennsylvania Constitution’s armsbearing right as recognition of the natural right of defense “of one’s person or house–what he called the law of ‘self preservation.’” But Wilson makes clear he is not advancing an individual right to keep and bear arms for personal defense under the Pennsylvania Constitution but only describing its historical meaning that is different from what the majority attempts to place on words alone.

Speaking of the constitutional right of the citizens to bear arms in the defense of themselves shall not be questioned, Wilson says, “This is one of our many renewals of the Saxon regulations,” and that “one may assemble people together in order to protect and defend his house.” No question Wilson was speaking from personal experience after having in the year 1779 to collectively defend his home along with 34 others from 200 angry protesters who opened fire, killing two who were inside.

Wilson and his fellow defenders were not only able to hold off the mob long enough for reinforcements to arrive through collective defense, but also through ammunition that had been gathered from a local public armory. Thus, Wilson is talking about the renewal of Assize of Arms as established under King Alfred, where his subjects were compelled to become united under sword for the common defense of their family, neighbors, parish and realm. Without such a united defense, no single man with a musket could have been able to defend either themselves or home against a mob of 200 people.

Judge Story remarked in his commentaries that it is impossible to keep the people duly armed without a disciplined and organized militia – and this is exactly the principle armsbearing provisions found in constitutions recognize.

During the Pennsylvania Constitutional Convention of 1837, delegate John Fuller expressed this spirit of a common defense under an organized militia when he said every man “should be considered as a citizen-soldier, because it is consistent with the very spirit of our Government, that every man should feel such a deep personal interest in it, as that he would be willing to shoulder his musket, at any time, and not leave it to his neighbor to defend his possessions, or the country which has given him birth.”

In his 1829 annual message to the Pennsylvania Assembly, Governor John Andrew Shulze said, “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ‘ if such a necessity shall arise.” In other words, for the common defense, meaning collectively defending themselves in an organized and trained manner.

Though unlike other similar armsbearing rights found in other State constitutions that used the phrase “common defense” and “bear arms,” the words “bear arms” alone meant the same principle of a common defense because the phrase was understood only to mean bearing arms in the service of the militia for purposes of common defense. Again, militias served as a collective organization of disciplined citizens in defending themselves collectively against other hostile armed bodies of people. Armed individuals alone would be of no use against any organized invasion or security against mass uprising.

There is strong doubt against Justice Scalia’s assertion the “right of the citizens to bear arms” found in these noted constitutions are analogues to the Second Amendment. For example, during the Pennsylvania Constitutional Convention of 1837 there was an attempt to remove the conscientious-objector clause found under Article VI, Sec. II. Delegates who debated this issue found this clause of the State Constitution to be directly analogues to the Federal Second Amendment. For example, delegate John McCahen said:

In the amendments to the Constitution, article second, would be found the following words: “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 there reserved to the people of every State the right to bear arms and organize a militia, and we do not entrench either upon the Constitution of the United States, or the laws of Congress, when we provide that the freemen of the State shall be enrolled and organized as militia.”

Scalia writes the phrase “keep arms” was not “prevalent in the written documents of the founding period that we have found.” Article XVII of the Massachusetts Constitution of 1780 read: “The people have a right to keep and to bear arms for the common defence.” This may not be any different under the Second Amendment’s well regulated militia “being necessary to the security of a free State.” In other words, a well regulated militia is necessary to establish a common defense in order to bring about security for any State.

The meaning behind “to keep” is easy to understand through events experienced during the revolutionary war. Military supplies had been forbidden to be exported to any of the colonies by orders of the King, and Governor Gage of Mass. following orders of the King, raided the arsenal at Charlestown, which invoked outrage among the citizens. Because the country was deficient in munitions of war, the Massachusetts Committee of Safety set about secretly collecting muskets and gunpowder to keep at a secrete location where they could later be used to arm the local militia.

It should also be noted that under the old Articles of Confederation States were required to keep arms and ammunition for their well-regulated and disciplined militias in “public stores.”

Speaking of comparisons between the Second Amendment and the English Bill of Rights, Scalia claims “Protestants would never be disarmed” under the provision of the English Bill of Rights that read: “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.” Scalia states this “right has long been understood to be the predecessor to our Second Amendment,” and that “it was clearly an individual right, having nothing whatever to do with service in a militia.”

It is difficult to read from this provision a right for Protestants to never be disarmed because this provision is dependent upon legislation allowing Protestants to have arms for their defense. A law that says Protestants may not have arms would not be infringing because the clause says only that Protestants may have arms for their defense as allowed by law, which provides no protection against banishment. Blackstone described this provision as merely a “public allowance under due restrictions.”

Also, there is no evidence to support the claim this English provision “was clearly an individual right, having nothing whatever to do with service in a militia.” Just the opposite is true as events surrounding the declaration had everything to do with service in the militia.

The Duke of Ormond had formed an all Irish Militia and provided Protestants who served in his militia with their arms. James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641. Meanwhile, Papists were allowed to remain armed and employed in militias contrary to the law of the time.

In 1678, there was an effort to provide defense of Protestants against Papists Militias bearing arms against them. A passage can be found in the Manuscripts of the Marquess of Ormonde, K.P. (December 7, 1678) that reads:

Yesterday and this day some progress was made in the House in those two points wherein all agree for the disbanding of the army, and for Bills that may secure the Protestant religion whatever happens. In this provision there arose a long debate to have either a distinct Bill or a clause in this to enable Protestants to withstand and defend themselves against any Papists whatsoever that should come with commission and bear arms in any military employment, and to dispense with those laws that at present made it rebellion so to do. (Note that in the year 1678 “bear arms” was considered military phraseology.)

As this passage makes clear, Protestants by law were unable to arm themselves under an organized and disciplined militia for defense against the Papists because such an act was considered a pretext to an organized rebellion. This passage leaves little doubt the words “Protestants may have arms for their defense suitable to their conditions and as allowed by law” speaks of arms for the common defense under the laws of an organized militia. This conclusion is further supported by the fact it was the disarming of the Irish Militia and the threat of armed Papist militias that lead to the passage of this provision in 1688, and the fact only Protestants were singled out.

When Lord Amherst ordered the disarming of all inhabitants of London in 1780, he made it clear those who were members of the militia were not to be disarmed along with persons authorized by the King to be armed. The reason is because that would had removed the right of the people to defend or restore order in their community (in this case defend against the riots of 1780).

Scalia appears to ridicule Justice Stevens for placing “great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment.” Joseph Story wrote among the defects sought to be enumerated under the Second Amendment was for people to “have a right to bear arms,” and “persons conscientiously scrupulous should not be compelled to bear arms.”

Delegate Elias Boudinot asked during the Second Amendment debates what dependence can be placed on those who have scruples to bearing arms, and “what justice can there be in compelling them to bear arms, when, if they are honest men they would rather die than use them.” This isn’t the sort of statement anyone would bring up if to keep and bear arms simply means to pack a handgun for personal defense under the Second Amendment. Did Congress or any State ever advocate for the compelling of people to keep guns for their own personal defense at home?

Scalia goes on to quote an 1825 Massachusetts libel case (Commonwealth v. Blanding) as follows: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”

To Scalia, this “analogy makes no sense if firearms could not be used for any individual purpose at all.” It does make a great deal of sense because people in fact had a right under Massachusetts law to make, sale, buy and use firearms provided they had been proved and stamped. Scalia’s mistake is he thinks these remarks might subjectively refer to the State constitutional provision on bearing arms. It does not.

The constitutional terms found under State Constitutions had no application toward the private keeping and use of firearms, and there were no laws preventing citizens from owning and using firearms for the same reason there was no known laws preventing people from owning or using a shovel or, even a tea kettle.

Where guns did come under scrutiny was when they were used to arm organized groups for either lawful or not so lawful purposes. It was not uncommon to find laws for the unlawful organizing of militias outside the laws of the State. It was also common to find laws on small arms that can be concealed or used in crime, and these kind of laws were outside the sphere of bearing arms in the service of a militia.

In Commonwealth of Pennsylvania v. Kreps, the court found pistols were not the kind of arms referred to under the State constitution:

The second amendment of the Constitution of the United States is a limitation of the power of Congress and of the national government only. The constitutionality of statutes relating to keeping and hearing arms must be determined by the constitutions of the respective states. …

A pocket revolver or pistol is not included in the term “arms,” as used in Article I, Section 21 of the Constitution of Pennsylvania, and therefore it was not the intention of the people to reserve the right to carry a pocket revolver or pistol without legislative interference or regulation. …

The Act of April 12, 1873, P. L. 735, which provides, “That any person who shall carry any pistol, dirk-knife, slung-shot or deadly weapon within the city limits of Harrisburg, except police officers, shall be deemed guilty of a misdemeanor” does not violate Article I, Section 21, of the Constitution of Pennsylvania.

In Ex Parte Thomas, 21 Okla. 770 (1908), the court says:

The term “arms,” as used in the Oklahoma Constitution providing that the right of a citizen to carry and bear arms shall never be prohibited, when construed in connection with article 5, §40, declaring that the Legislature shall provide for organizing, disciplining, maintaining, and equipping the militia of the state, applies solely to such arms as are recognized in civilized warfare, to wit, guns, swords, bayonets, horsemen’s pistols, etc., and not those used by a ruffian, brawler, or assassin, such as pocket pistols, dirks, sword canes, bowie knives, etc.

All the laws I have encountered that deal with civilian gun regulations never used the term “bear arms” when addressing private ownership or lawful civilian use of weapons outside of military service. One example is Pennsylvania Game laws, which reads in part: “Provided, That nothing in this act shall be construed to prevent any citizen of the United States, residing within this Commonwealth, from having a gun in his home; or from using such gun in defense of either person or property; or from shooting at targets or from hunting for or shooting at, in any place in this Commonwealth, anything not protected by the laws of this Commonwealth…”

Another example is found under the Civil Articles of Limerick spell out the common civil use of a gun: “Every nobleman and gentleman comprised in the said second and third articles shall have liberty to ride with a sword and case of pistols, if they think fit; and keep a gun in their houses, for the defence of the same, or for fowling.”

You would think most all State statutes would follow the same universal terminology found in Federal and State constitutions if “bear arms” was widely understood to mean private use of weapons for personal self-defense or hunting. The fact this isn’t the case confirms “bear arms” had a specific military application attached.

Some recent additions to State constitutions addressing arms fall into the same trap the majority finds itself arguing, mainly construing the keeping and bearing of arms as meaning an individual right to privately own and use firearms. For example, the State of Nebraska adopted this language in 1988: “the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”

Apart from the misunderstanding the framers of this provision display over the historical meaning of bearing arms, it is a wonderful provision that should be adopted by every State of the Union with a slight change of removing “to keep and bear arms” and inserting more relevant terminology: “to keep firearms.”

The majority thinks Section 14 of the Freedmen’s Bureau Act is proof that during the reconstruction period the Second Amendment was understood to give freed blacks the right to keep and bear arms for personal self-defense:

Sec. 14. That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, and until the same shall be fully restored, and in every State or district whose constitutional relations to the Government have been practically discontinued by the rebellion, and until such State shall have been restored in such relations and shall be duly represented in the Congress of the United States, the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district, without respect to race or color or previous condition of slavery.

One fatal flaw with interpreting Section 14 as recognizing a right of individual persons within States to keep and bear arms is that former rebel States were under the sole administration of Congress, divided into military districts, and were not considered organized States. Therefore, it is easy to understand the justification for including the “constitutional right to bear arms” since Congress had sole jurisdiction. Another flaw the majority committed was ignoring why the “constitutional right to bear arms” language was included in the first place.

It was General Fisk’s letter to the Commissioner of the Freedmen’s Bureau that was the basis for the Act to highlight the bearing of arms:

More than twenty-five thousand colored men of Kentucky have been soldiers in the Army of the Union …. Their arms are taken from them by the civil authorities and confiscated for the benefit of the Commonwealth. The Union soldier is fined for bearing arms. Thus the right of the people to keep and bear arms as provided in the Constitution is infringed, and the Government for whose protection and preservation these soldiers have fought is denounced as meddlesome and despotic when through its agents it undertakes to protect its citizens in a constitutional right.

The infringement turns out not to have anything to do with arms of private citizens at home, but with some 25,000 Union soldiers and their government issued muskets. On the other hand, the city of Opelousas, Louisiana was very careful, unlike Kentucky, not to disarm Freedmen who were in the service of the military:

SEC. 7. No freedman who is not in the military service shall bo allowed to carry fire-arms, or any kind of weapons, within the limits of the town of Opelousas without the special permission of his employer, in writing, and approved by the mayor or president of the board of police. Any one thus offending shall forfeit his weapons, and shall be imprisoned and made to work five days on the public streets, or pay a fine of five dollars in lieu of said work.

Scalia selectively quotes a report from the Commission of the Freedmen’s Bureau in 1866 to buttress the majority’s claim Kentucky’s prohibition of blacks from bearing arms were not in fact “being prohibited from carrying arms in an organized state militia.” In essence, the majority wants us to believe Kentucky’s prohibition against blacks bearing arms had nothing to do with service in the militia, but everything to do with disarming private citizens of their private guns that is said to infringe the Second Amendment. This is a deliberate mischaracterization of the truth.

The law in question specifically was directed at an estimated 25,000 returning black Union soldiers who were returning with their government issued arms – not the banning of private firearms belonging to the public. This attempt to disarm Union soldiers was easily seen as infringing the Second Amendment because they were members of the military – not private civilians. In addition, there were questions over whether Kentucky was acting improper because national law specifically required enlisted militia members to be “white.” In 1867, a bill was presented to remove the word “white” from the militia laws of the United States.

* * * * * * * *

There is no evidence to support the majorities’ suggestion that both the Federal Government and States viewed the Second Amendment as an individual right to keep and use weapons outside of the militia as demonstrated below.

In May of 1680, Massachusetts Governor Bradstreet clearly stated what bear arms signified: “We account all generally from fifteen to fifty that are healthful and strong body’s, both Householders and Servants fit to bear Arms, except Negros and Slaves, whom we arme not.” In other words, it is the arming and training of the citizenry who possess this right to “bear arms” who are the sole military power of the colony.

Soon after Alaska had been acquired from Russia, Congress in 1868 empowered the President of the United States to not only ban the importation of firearms into Alaska, but also forbid the use of all firearms within all of Alaska. This law was not considered to be infringing the Second Amendment.

Gov. John Page of NH, speaking of the Second Amendment on June 3, 1841, clearly viewed the amendment as having everything to do with bearing arms in the service of a militia:

The General Government is authorized “to provide for organizing, arming and disciplining the militia;” — and it is very desirable that a new organization should be made. It is believed that we have one and a half million of soldiers enrolled in the militia throughout the Union; of this number we have about thirty thousand in this State, who are called out thrice in each year for inspection, drill and review. This mode of training so numerous a body of soldiers, is attended with a very great aggregate expense, of both time and money, unaccompanied in the estimation of very many of our citizens by an equivalent advantage. The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

Missouri Governor, Claiborne F. Jackson, declared in 1863 the citizens of Missouri had the right to “keep and bear arms in conformity to the State laws and to form a well regulated militia necessary to the security of a free State.”

St. George Tucker, Lectures on Constitutional Law (1843), said to bear arms is a duty of citizenship like a duty to pay taxes: “There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular state. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes.”

Victoria C. Woodhull wrote in 1890: “A citizen possesses all his rights of citizenship from birth, else he can never possess them legally as I have shown; but some of these rights, like the right to bear arms, he does not exercise till the military age.

Harper’s New Monthly Magazine, November 1874 issue: “The reason of the feudal inability of women to hold property was that they could not bear arms to defend and maintain it. If, then, women should not have the suffrage because they can not bear arms to enforce the laws, ought they to have property which they can not bear arms to protect?”

The Act of March 2, 1867, was truly found to infringe the Second Amendment, however, radical Republicans danced around the subject by insisting the rebel States were not legal States (seems rebel States were only considered legal when it came to being forced to ratify the Fourteenth and Fifteenth Amendments.) This Act read in part:

SEC. 6. And be it further enacted, That all militia forces now organized or in service in either of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas, be forthwith disbanded, and that the further organization, arming, or calling into service of the said militia forces, or any part thereof, is hereby prohibited under any circumstances whatever, until the same shall be authorized by Congress.

Why would this Act be universally condemned as violating the Second Amendment, if we are to believe the court majority, the phrase “bear arms” was “unambiguously used to refer to the carrying of weapons outside of an organized militia”?

Patrick Henry proclaimed: ”The great object is that every man be armed. … But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?”

George Mason said: “Who are the militia? They consist now of the whole people. … the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. … Under the present government, all ranks of people are subject to militia duty.”

Duke of York’s Laws (1676): “No man shall be Compeld to bear Armes or wage war by sea or Land, without the bounds and limits of this Government, But from Defensive wars noe man shall be exempted.”

Speaking of the Federal Second Amendment, prominent Massachusetts politician, Francis Bird, said of the Massachusetts “right to bear arms for the common defence” in October of 1853:

“To keep and bear arms,”–not for self-defence, not for “military instruction,” not for “special service in keeping guard;” but as members of a “well regulated ” [State] militia. This was the very purpose of adopting this second amendment to the federal constitution–to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment,–the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.

On July 2, 1863, U.S. issued orders forbidding citizens of the city of Baltimore and County to keep arms except those with the constitutional right to keep arms being members of a militia. Under the Fifty-first Regiment of Massachusetts Volunteers, assisted by the provost marshal and the chief of police, soldiers in concert with the police went house to house searching for weapons. Muskets, carbines, rifles and revolvers were gathered in considerable quantities.

George S. Boutwell, a significant player in the framing and adoption of both the Fourteenth and Fifteenth Amendments, did not dispute the conclusion the Second Amendment was not applicable towards the States in Presser v. Illinois:

The claim that the statute was in violation of the Second Amendment to the Constitution was disposed of by the declaration by the Court, that the Second Amendment was a guarantee that nothing should be done by the United States in restraint of the right of the people to keep and bear arms, but that the amendment could not be appealed to as limiting the power of the States.

The teaching in this case seems to justify the following conclusion namely: that as long as a State in the exercise of its power does not interfere with the ability of the United States government to command the military resources of the State, it may exercise jurisdiction over its citizens in the enjoyment of the right of freedom in the matter of keeping and bearing arms.

Significantly, Boutwell says Presser v. Illinois is the “only case of importance which has arisen under” the Second Amendment. This is significant because there was no right of the citizen to keep and bear arms under the Illinois constitution, only provisions for “all free male able-bodied persons (negroes, mulattoes and Indians excepted,) residents of the state, between the ages of 18 and 45 years, except such persons as now are or hereafter may be exempted by the laws of the United States or of this state, and shall be armed, equipped and trained as the general assembly may provide by law.”

Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, said as a lawyer during South Carolina’s Ku Klux Klan trials (1871-1872):

What does the Constitution of the United States say about bearing arms? Nothing. What does the fourteenth amendment say upon the same subject? Nothing. The latter is as silent upon the topic as the former, and if the former cause for silence does not cover such a case as this, the latter, for the same reason, does not embrace it. … Has not the State in a case like that the right to take arms from the militia company? I think there can be no doubt of that. And if the right exists to take the arms out of their hands in such a case as that, then it is because the right to bear arms is not a right given by the Constitution of the United States; but exists under the local law of the State.

There perhaps can be no better in-depth analysis by any State Supreme Court on the meaning of the Second Amendment as found in the West Virginia case of State v. Workman:

The second amendment of our Federal Constitution should be construed with reference to the provisions of the common law upon this subject as they then existed, and in consonance with the reason and spirit of the amendment itself, as defined in what may be called its ‘preamble.’ As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offense.

The keeping and bearing of arms, therefore, which at the date of the amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection. So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets–arms to be used in defending the State and civil liberty–and not to pistols, etc.

Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”

In Alabama the court found Section 4 of the Bill of Rights, “which provides that ‘the people have the right to ‘bear’ arms for their defense and security,’ is a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia or any other military organization provided for by law. (Nichols v. State, 4 Ala. App. 115, 58 So. 681 (1912))

Refusal to take the “oath to bear arms” always resulted in denial of citizenship in naturalization court. This remained the rule until 1946 when a 5-3 Supreme Court decision struck down the administering of the Arms-Bearing Pledge. Did anyone ever believe new citizens were required to purchase firearms for self-defense at home?

Bishop, Statutory Crimes, §793: “In reason the keeping and bearing of arms has reference to war and possibly also to insurrections where the forms of war are so far as possible observed. The phrase itself, ‘to bear arms,’ indicates as much. The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as ‘bearing arms.’ The use of the phrase suggests ideas of a military nature.”

A.G. Riddle before the House Judiciary Committee, January 11, 1871, remarked:

Apply the gentleman’s idea to other provisions of the Constitution; for instance, to this: “The right of the people to keep and bear arms shall not be infringed.” Would he contend that therefore every new-born baby might at once grasp a musket? This might be constitutional, but it would put the infantry on a war-footing before the commissariat could be mobilized, I fear. (Laughter and applause.)

Delegate William Barnes remarked during the Constitutional Convention of the State of California in 1878:

[I] find in article two a declaration that a well regulated militia, being necessary to the security of free States, the right of the people to keep and bear arms shall not be infringed. Now, we know that this question was considered a very important one in the early organization of the government, and it is no less important now than it was then, because the people had their choice then as they have now between a well organized State militia in the several States and a standing army maintained by the central government, which, under our system of republican institutions, has always been considered an enemy to liberty, and when the people had their choice between maintaining a large standing army, maintained by the General Government as the great armies of Europe arc maintained, at a vast cost to the General Government and to the people, they determined upon the plan which now exists, that is to say, to provide for the organization and equipment of a militia force.

Finally, allow me to add that it is irrelevant whether militia members might had been required to own their own arms or were provided public arms because all able bodied men were compelled to possess these specific arms by State militia laws.

I will quickly close by saying the Second Amendment right to keep and bear arms means only the right of the people under their own State governments shall never be infringed from organizing and maintaining armed militias for the purpose of a collective security for themselves. The word “arms” had the universal understanding to mean arms of the militia and not general firearms used in civil society.

For NRA pundits, Heller will be held in the same esteem as Roe v. Wade is to Pro-Choice advocates, and like Roe, deserve to be overturned because neither deserves to be called law. The personal right to keep and use firearms remains where it has always remained – under permissible laws demanded by the people themselves under their own State and local governments.

This after all, is what our Republican form of government is all about.

Final Thoughts

It is worth considering the purpose behind the Second Amendment along with the nine other amendments adopted. These amendments, in the words of Madison, were “restrictive & explanatory amendments.” Madison says, all of these amendments indicated a “jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them.” C.J. Marshal said, “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.”

Speaking of defending oneself or, ourselves and property, through an armed citizenry is no different then saying the national government defends citizens and property through the military power of the entire member States of the Union in situations of armed invasion by the military establishment of another country. Armed citizens at home are of little use for defending people and property of a State against violence because arms require training, tactics, discipline, communication, etc., to be of any use.

Finally, armed militia’s can easily exist where firearms at home are outlawed because such weapons can be kept in armories for use by members of the militias, or special militia provisions for members to keep arms at home. I am not advocating gun restrictions no more than I would for laws outlawing owning food; I am just saying public laws over private firearms would have no effect on maintaining an armed militia for the defense of citizens of a State.

UPDATE: I was asked to provide a more specific historical definition of the Second Amendment. The Second Amendment is not a right but a declaration of an ancient principle that says the local military power is safer when left to the citizens themselves rather than in a standing army. In this regard the Second Amendment is no different than the Tenth Amendment.

Standing armies were repulsive because they lived among the people and could by law be quartered in people’s homes in addition to aiding leaders in extending their arbitrary power.

We know this is true meaning of the Second Amendment because the number one complaint against the early Constitution was the absence of a security against a standing army. Hence, the reason behind the insertion of the Second Amendment, to put beyond doubt no power was invested in Congress to disarm the State militias and replace them with a national military force.

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