The Second Amendment and Red Flag Laws: Understand Your Rights and Learn the Truth

RED FLAG LAWS - I want YOU to prevent gun violence

by Diane Rufino, October 1, 2019

My professor at law school, Judge Andrew Napolitano, FOX News Senior Legal Analyst, wrote an excellent article on Red Flag Laws.

Not only is this article spot on regarding the issues (unconstitutionality) of Red Flag laws, but it is a brilliant overview of our founding and of the original intent and understanding of our Second Amendment’s guarantee of the right to keep and bear arms. The history included in Judge Napolitano’s article is a history that our children will never be exposed to in the public school system. Our government will never allow students to be taught that they have an inherent right to be armed against government should it turn despotic and tyrannical (which almost all governments, at some point, become).

St. George Tucker, one of our country’s most influential legal scholars and an expert on the US Constitution (as ratified), wrote the following in his View of the Constitution of the United States (1803) regarding the right to arms addressed in the Second Amendment:

“This may be considered as the true palladium of liberty. . . . The right of self-defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.”

Tucker’s View of the Constitution was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. And his Blackstone’s Commentaries, With Notes of Reference to the Constitution (1803), from which the following excerpt originates, was the major treatise on American law in the early 19th century. Lawyers arguing before the Supreme Court of the United States would frequently cite to Tucker’s Blackstone’s Commentaries more often than any other commentator until 1827.

The information in Judge Napolitano’s article is information that I did not learn in my years at Seton Hall Law School (which was recently renamed “Seton Hall School of Social Justice”). The reason is that the Second Amendment had not been interpreted and analyzed honestly by the Supreme Court when I was a student there. For all of our country’s history, the Second Amendment was assumed by ordinary citizens to include the individual right to self-defense while it was assumed by government to only include the right to firearms when men formed into a militia. This difference of viewpoints highlights exactly the difference between Free Individuals and Government. It highlights the difference between the views and intent of Free Individuals versus the views and intent of government. Individuals want their rights secure; and especially from the reaches of government (as the Bill of Rights was intended to ensure). They are protective and defensive of their rights. Government, on the other hand, wants to control the people and is ever so willing to re-interpret rights such that government can burden, define, and even take them away (such as when third parties make a complaint that a certain individual is a threat and should have his/her firearms confiscated).

When I was attending law school, the controlling Supreme Court jurisprudence was that the right protected in the Second Amendment was not an individual right but a collective right. In 1939, the Supreme Court decided a firearms case, United States v. Miller, in which it interpreted the Second Amendment as such. The right to keep and bear arms, as a result of the case, was understood to be a collective right; it gave rise to the “Militia Theory” of the Second Amendment. I graduated from Seton Hall when this case was still controlling jurisprudence. The year after I graduated, however, marked a profound shift in the view of the Second Amendment. George Bush ran for president on the view that the Second Amendment protected an individual right to keep and bear arms, for self-defense and self-protection. That was also the view held by the NRA at the time, which was one of Bush’s biggest campaign backers. John Ashcroft, Bush’s Attorney General issued a letter in 2001 renouncing the “Militia Theory” of the Second Amendment and endorsed the “Individual Rights” view. The US Department of Justice would from that date forward “unequivocally” support the view that the amendment guaranteed and protected the “private ownership of firearms” (as the letter read). Immediately after the letter’s release, Ashcroft send a memorandum to all federal prosecutors officially informing them of the administration’s official position. [In other words, the Attorney General, as part of the Executive Branch, NULLIFIED the position of the Judicial Branch].

In November of 2001, we had the first federal ruling to apply the updated view of the Second Amendment – United States v. Emerson. A federal appeals court in Texas held that the earlier decisions interpreting the Second Amendment to apply only to state militias had been wrong. The case involved a man who had been brought up on charges of illegally possessing a firearm. Timothy Joe Emerson’s wife had previously accused him of threatening her, which led her to obtain a temporary restraining order against him. Under federal law, a person under such an order is prohibited from possessing firearms. Emerson, however, refused to give up his. He argued that under the Second Amendment, he should be able to keep his gun, his Beretta pistol, because the Constitution guaranteed him the right to have one for self-defense. The court agreed with him, under the Ashcroft DOJ view. The original meaning of the Second Amendment, the ruling articulated, was to guarantee individuals, and not just militias, the right to keep and bear arms. [The ruling went on to explain that persons with a history of violence could be legally barred from possessing guns. And using that logic, the court ordered Emerson to stand trial]. But the Emerson case marked a profound shit in Second Amendment jurisprudence. And then the 2008 landmark case District of Columbia v. Heller solidified that view in a brilliant and masterful opinion written by the late Justice Antonin Scalia.

I have written extensively about his in my article “Anatomy of a Supreme Court Case: District of Columbia v. Heller (2008),” which I posted on my blogsite on June 12, 2019. [https://forloveofgodandcountry.com/2019/06/12/anatomy-of-a-supreme-court-case-district-of-columbia-v-heller-2008/].

Why are lawmakers talking about Red Flag Laws and other Gun Control Laws? Why are Democratic candidates like Beto O’Rourke talking about government confiscation of firearms? It’s because they have no clue what significance the Constitution has as a founding document, as a document to define and empower the federal government while at the same time, limiting it. It’s because they have no clue whatsoever why the Bill of Rights is so critical and what purpose those amendments serve in our so-called “free country.” It’s because they idolize leaders such as Hitler and Stalin more than they idolize visionaries such as Thomas Jefferson and James Madison.

Why are millennials, liberals, and progressives (ie, Democrats) so willing to fight for and support gun control laws, to support gun bans, and to support repeal of the Second Amendment? It’s because they don’t value liberty. They aren’t inclined to take the chances that come with a free society (which is the reality that bad people will do bad things, especially in our current era devoid of religion and morality and strong stable families) and they aren’t willing to accept the responsibility that comes with being a member of a free society, which includes the support of policies that strengthen families, morality, self-sufficiency, honest education, proper gender roles, religious guidance, inclusion rather than “diversity” (which is actually code for division and identity politics), the rule of law, and the rights of victims over the rights of criminals, and which reward sacrifice and success, military service, and common sense. Healthy communities are the natural by-product of good and responsible law-making, where the most productive qualities and most productive conduct are encouraged and protected.

It is so true what they say….. People who do not know what their rights are, who don’t know why those rights are essential, and who don’t know how they are secured are the ones who are unfit to stand up for them. In a way, they are undeserving of the freedom that the United States offers. Being an American means you responsibly exercise your God-given and other liberty rights, you respect the identical rights for others, you conduct yourself in a way that reflects admirably on the United States, and you accept the duty of defending those rights, opposing government when it abuses its powers, and in general, ensuring that the country you inherited is at least the same (but hopefully better) than the one you will leave to future generations. That is the way you preserve our great American experiment and the way you preserve individual liberty.

It all starts with proper and honest education. Education should always favor the people and their rights and responsibilities, and not the supremacy of the federal government and its agenda. And that’s because the primary role of government, as explained in exquisite detail in the Declaration of Independence, is to secure and protect the rights of the individual. When it ceases to perform that primary role, then government as is should cease to exist and the people should “alter or abolish” it and institute another government, “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

So please read Judge Napolitano’s article below and share it. Please use it to help educate your children, grandchildren, etc. At least use it to begin a conservation, a debate, or to inspire them to learn more. We can take back our country and protect our rights, one child at a time. They are our future.

RED FLAG LAWS: THE DANGEROUS URGE TO DO SOMETHING, by Judge Andrew Napolitano, Sept. 20, 2019 [https://tenthamendmentcenter.com/2019/09/20/red-flag-the-dangerous-urge-to-do-something/ ]

When the Constitution was written, the idea of owning arms and keeping them in the home was widespread.

The colonists had just defeated the armies of King George III. The colonial weapon of choice was the Kentucky long rifle, while British soldiers used their army-issued version of Brown Bessies. Each rifle had its advantages, but the Kentucky (it was actually a German design, perfected and manufactured in Pennsylvania) was able to strike a British soldier at 200 yards, a startlingly long distance at the time. The Bessies were good for only about 80 yards.

Put aside the advantages we had of the passionate defense of freedom and homeland, to say nothing of superior leadership, it doesn’t take any advanced understanding of mathematics or ballistics to appreciate why we won the Revolution.

It is a matter of historical fact that the colonists won the war largely by superior firepower.

Six years after the war was over, delegates met in Philadelphia in secret and drafted what was to become the Constitution. The document, largely written in James Madison’s hand, was then submitted to Congress and to the states, which began the process of ratification.

By then, Americans had already formed two basic political parties. The Federalists wanted a muscular central government and the Anti-Federalists wanted a loose confederation of states. Yet the memory of a Parliament that behaved as if it could write any law, tax any event and impair any liberty, coupled with the fear that the new government here might drift toward tyranny, gave birth to the first 10 amendments to the Constitution — the Bill of Rights.

The debate over the Bill of Rights was not about rights; that debate had been resolved in 1776 when the Declaration of Independence declared our basic human rights to be inalienable. The Bill of Rights debates were about whether the federal government needed restraints imposed upon it in the Constitution itself.

The Federalists thought the Bill of Rights was superfluous because they argued that no American government would knowingly restrict freedom. The Anti-Federalists thought constitutional restraints were vital to the preservation of personal liberty because no government can be trusted to preserve personal liberty.

Second among the personal liberties preserved in the Bill of Rights from impairment by the government was the right to self-defense. Thomas Jefferson called that the right to self-preservation.

Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso, Texas, and Dayton, Ohio. Even though both mass murders were animated by hatred and planned by madness, because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.

Where is the constitutional authority for that? In a word: nowhere.

The government’s job is to preserve personal liberty. Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce their access to madmen? When did madmen begin obeying gun laws?

These arguments against confiscation have largely resonated with Republicans. Yet — because they feel they must do something — they have fallen for the concept of limited confiscation, known by the euphemism of “Red Flag” laws.

The concept of a “Red Flag” law — which permits the confiscation of lawfully owned weapons from a person because of what the person MIGHT do — violates both the presumption of innocence and the Due Process requirement of proof of criminal behavior plus the opportunity to challenge that allegation before liberty can be infringed.

The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.

The Republican proposal, the “Red Flag” laws, lowers the standard of proof to a preponderance of the evidence — “a more likely than not” standard. That was done because it is impossible to prove beyond a reasonable doubt that an event might happen. This is exactly why the “might happen” standard is unconstitutional and alien to our jurisprudence. It is simply not sufficient to protect our inalienable rights and the liberty rights we are entitled to, according to “the laws of nature and by Nature’s God” (Declaration of Independence, first paragraph).

In 2008, Justice Antonin Scalia wrote for the Supreme Court, in the case District of Columbia v. Heller, that the right to keep and bear arms in the home is an individual pre-political right. Due process demands that this level of right — we are not talking about the privilege of a driving a car on a government street — can only be taken away after a jury conviction or a guilty plea to a felony.

The “might happen” standard of “Red Flag” laws violates this basic principle. The same Supreme Court case also reflects the Kentucky long gun lesson. The people are entitled to own and possess the same arms as the government; for the same reason as the colonists did — to fight off tyrants should they seize liberty or property.

If the government can impair Second Amendment-protected liberties on the basis of what a person might do, as opposed to what a person actually did do, to show that it is doing something in response to a public clamor, then no liberty in America is safe.

Which liberty will the government infringe upon next?

 

ANDREW NAPOLITANO - head shot

References:

Judge Andrew Napolitano, “Red Flag Laws – The Dangerous Urge to Do Something,” Tenth Amendment Center, September 20, 2019. Referenced at: https://tenthamendmentcenter.com/2019/09/20/red-flag-the-dangerous-urge-to-do-something/

Diane Rufino, “Anatomy of a Supreme Court Case: District of Columbia v. Heller (2008),” www.forloveofgodandcountry.com, June 12, 2019. Referenced at: https://forloveofgodandcountry.com/2019/06/12/anatomy-of-a-supreme-court-case-district-of-columbia-v-heller-2008/

ANATOMY OF A SUPREME COURT CASE: District of Columbia v. Heller (2008)

DIck Heller and Supreme Court - Median pic

  (Photo credit: Median)

by Diane Rufino, May 25, 2019

The case District of Columbia v. Heller is the landmark Supreme Court case decided in 2008, and written by the late great conservative Justice Antonin Scalia, which finally looked at the roots and origins of the Second Amendment and ruled that it confers not only a collective right to keep and bear arms when serving in a militia but also an individual right to keep and bear arms for self-defense and for self-protection. The Second Amendment recognizes and guarantees gun rights for two articulated purposes. Both purposes involve self-defense and protection: The first is for the defense and protection of the state and the second is for the defense and protection of the individual.

We the People have the inalienable Right to Life. The corollary to that absolutely fundamental right is the right to defend and preserve it. Otherwise the right is only one recognized on paper. The right to defend one’s life implies that the individual be entitled to possess the same type of weapons, and of the same force, which may attempt to take his or her life.

The case stems from an incident, as we will see, that occurred in 1975 and which immediately resulted in the strictest gun control law in the nation – in the District of Columbia.

But first, let’s look at the wording of the Second Amendment:

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.”

Next, let’s look at the context in which this Amendment has been added to the Constitution. To do that, let’s look at the Preamble to the first ten amendments (Bill of Rights):

“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

Each of the first ten amendments to the Constitution (The Bill of Rights) holds a particular significance in the scope of government. And that significance is articulated by the Preamble which accompanied the Bill of Rights. The Preamble goes to the INTENT of our Founders and framers and to the understanding of the ground rules by which the States established and then agreed to create a general government. Remember, there were several states that would NOT have ratified and adopted the Constitution – that is, would NOT have joined the Union of states – if a Bill of Rights was not added.

How important was the Right to Keep and Bear Arms?? As will be discussed later, gun rights activist Don B. Kates, did extensive research into the history and the roots of our gun rights and the Second Amendment. In his research into the debates of the states in their ratifying conventions (1787-1790), he found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights.

North Carolina was one of those states. North Carolina met in convention in 1788 (July 21 – August 4) and could not decide whether to adopt the US Constitution. The State adopted the Anti-Federalist position which held that the Constitution had the potential of concentrating too much power in a central government. To avoid this, those states argued that a Bill of Rights was needed to be added to the Constitution (“A Bill of Rights is what every free people are entitled to against every government” – Thomas Jefferson). North Carolina decided to wait it out – to see if a Bill of Rights would indeed be added. At that 1788 convention, the delegates drafted and adopted a “Declaration of Rights: (20 of them) and a set of Amendments (26 of them), which were forwarded to Congress. [See https://www.usconstitution.net/rat_nc.html]. One of those “Rights” was the Right to Keep and Bear Arms. It read:

“17. That the people have a right to Keep and Bear Arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power.”

The Constitution was eventually ratified by the requisite nine states on June 21, 1788 (New Hampshire being the ninth state to ratify) and so it went into effect and established our second American Union. The first US Congress was seated on March 4, 1789. (North Carolina was not part of the Union at that time and thus, not represented). In September 1789, the first US Congress adopted a set of amendments (which were written and submitted, as promised, by James Madison), which were sent to the States to be ratified as the US Bill of Rights. Once this was done, North Carolina called up a second convention two months later. The Constitution was ratified on November 21, 1789, making the state the twelfth state to ratify and join the Union.

So, let’s go back to 1975, the year that ultimately gave rise to the Heller case.

  • Violent crime involving handguns was on the rise in the United States. Communities were no longer safe; the streets were no longer safe. Murders were up, robberies were up, aggravated assaults were up, there were car-jackings, home invasions, drug-related crimes, etc
  • In 1974 alone, there were more than 890 incidents of violent crime (involving the illegal use of a firearm) every single day – with a disproportionate share of them being in DC
  • In the 1970’s, DC was suffering from one of the highest levels of violent crimes (and poverty and drugs and venereal disease) in the country
  • Fortune magazine called DC “one of the sickest cities in America”
  • The majority of its residents were African-American, trapped in poverty, stuck on welfare, and succumbing to crime and drug use
  • Prayer was taken out of public schools by the Supreme Court with the Engel v. Vitale ruling in 1962
  • Bible readings were taken out of public schools by the Supreme Court with the Abington v. Schempp ruling in 1963
  • LBJ signed the Civil Rights Act into law in 1964, creating the welfare system we know today which has had disastrous effects on the advancement of black communities – providing and focusing on handouts that discourage self-improvement, advancement, independency, and responsibility

With respect to LBJ’s “War on Poverty” and the “Aid to Families with Dependent Children (AFDC)” program (welfare, particularly aimed at inner-city blacks), Derryck Green, spokesman for Project 21 (Black Leadership Network) explained: “The disastrous effects of the government’s management of anti-poverty initiatives are recognizable across racial lines, but the destruction is particularly evident in the black community. It effectively subsidized the dissolution of the black family by rendering the black man’s role as a husband and a father irrelevant, invisible and — more specifically — disposable. The result has been several generations of blacks born into broken homes and broken communities experiencing social, moral and economic chaos. It fosters an inescapable dependency that primarily, and oftentimes solely, relies on government to sustain livelihoods.” The unintended consequences – institutionalized poverty, crime, drugs, broken families, lack of education, etc were prevalent in DC in the 1970’s.

On a Sunday in June 1975, two men broke into a hardware store with pistols and committed armed robbery, firing shots at the guards while customers were in the store. The store was owned by John Hechinger, who also happened to be the first chairman of the Council of the District of Columbia (= city council of DC)

Two years earlier, in December 1973, the US Congress relinquished governance over the District of Columbia and established “home rule,” giving the city’s residents the right of self-governance…. Finally. However, the government still maintained ultimate authority; it could over-ride laws that it did not approve of.

In July 1976, John Hechinger helped to pass the most stringent gun control law in the nation:

  • Banned shotguns completely
  • Required that shotguns and rifles must be kept unloaded, disassembled, and locked in one’s home
  • Long guns (rifles, shotgun) could be assembled for recreation purposes only, such as hunting
  • Banned the use of “long guns” (including shotgun) for non-recreational purposes (hence, they could not be used for self-defense)

In other words, even if a person owned a shotgun, he or she couldn’t use it against an armed burglar coming through the door.

Interestingly, a young first-term Republican Congressman from southern Texas, Ron Paul, who had a particular aversion to big ambitious government and who would go on to found the Liberty movement, tried to over-turn the gun ban in Congress. Although Congress had given DC “home rule,” it still retained the right to revise its laws should it feel the need to do so. [The bill passed; however, the wording was so sloppy that it was ineffective at overturning the ban].

When the DC gun ban went into effect, Second Amendment jurisprudence wasn’t very well-articulated. The prevailing view was that the Second Amendment articulated a “militia theory” of gun rights. That is, a “collective right.” Only when an individual was serving or able to serve in a state militia would he be entitled to keep and bear arms. Those arms, accordingly, would only be allowed when serving in a militia.

In 1939, the Supreme Court ruled in the case United States v. Miller that “a sawed-off shotgun is not a typical weapon used by a militia and thus is not protected under the Second Amendment,” thus apparently endorsing the “militia theory” or “collective right” view of the Second Amendment.

Note that the Supreme Court never really officially endorsed the “Militia” theory (or Collective Right theory) of the Second Amendment because it never bothered to do a deep dive into its history or original meaning, but it certainly appeared it tended that way in 1939 with the Miller case. For many decades after the opinion, the lower federal courts adopted the “militia theory” and the Supreme Court never objected or took cases to correct this view. In fact, the justices of the Supreme Court declined for 70 years to rule on any Second Amendment case.

In the 1930’s and 1940’s, and even into the 1960’s, the US practiced and even institutionalized civil rights violations against African-Americans. There was the Jim Crow era, followed by the violent Civil Rights era, when those institutions of racism finally came toppling down. Before that, freed slaves and their children were victimized and persecuted by the Democratic Ku Klux Klan – militant members of the Southern Democratic Party intent on maintaining white supremacy in the South by preventing blacks from voting and having any meaningful civic voice in southern society. Most people don’t know that one of the primary objects of the Ku Klux Klan was to visit the homes of freed blacks and take their guns away. Blacks could not be permitted to have firearms; they could not be permitted to defend themselves or to harm whites.

In the summer of 1963,, a gun-rights activist named Don Kates stood guard outside the home of a local civil rights activist in eastern NC with an M1 Carbine in one hand and a Smith & Wesson Chief’s Special revolver in the other hand. That activist, a woman, was to be a plaintiff in a civil rights lawsuit and she had been receiving death threats. Eastern North Carolina was Ku Klux Klan country and the police too often sided with the Klan. Good men, civilians, armed with firearms would have to protect her and Don Kates volunteered for the job. Kates had just completed his first year at Yale Law School and was volunteering at a law firm in North Carolina working on civil rights cases. The experience of providing protection for a woman facing death threats taught Kates a valuable lesson: For oppressed people who can’t rely on the police, having a gun is sometimes the only means of self-protection. This was especially true for African-Americans who had a history of being oppressed and being denied access and ownership of guns.   [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” (2011)]

Later in the 1970’s when he went into private practice, Kates began to represent clients in civil rights cases. To best do so, he researched the history of the Second Amendment. Eventually, over the next couple of years, he published a series of articles in various legal magazines and journals on gun rights, the most notable being the Michigan Law Review. [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204]. That article in the Michigan Law Review was the first article ever to appear in a law review from a top ten law school arguing that the Second Amendment protected an individual right to keep firearms for self-defense. This article would help revolutionize Second Amendment jurisprudence by tying it to its original meaning and intent. [Adam Winkler, “Gun Fight….”]

But Kates’ article wasn’t actually the first to articulate this “Individual Right” view of the Second Amendment. That distinction would belong to Robert Sprecher, a Chicago lawyer, in 1965. Every year, the American Bar Association (ABA) sponsored an essay competition on constitutional law issues. The winning essay is published in the ABA Journal, the most widely-circulated legal periodical. In 1965, the question posed was this: “What does the Second Amendment, guaranteeing the right of the people to keep and bear arms,’ mean? Does the guarantee extend to the keeping and bearing of arms for private purposes not connected with a militia?” The winning essay was written by Sprecher (who, incidentally, went on to being nominated to the federal bench by President Nixon). [Robert Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965)]. In his essay, he argued that the original meaning of the Second Amendment had been lost. According to his research into its historical roots, the Founding Fathers sought to secure “the right to arm a state militia AND also the right of the individual to keep and bear arms” for personal self-protection. [Adam Winkler, “Gun Fight….”]

Clark Neily, who we will meet very shortly, considered Kates’ article in the Michigan Law Review the “seminal work” on the Individual Rights theory of the Second Amendment. It had a profound impact on his view of gun rights. To be fair, Kates didn’t deny that the Founding Fathers were concerned primarily with the militia when they conceived of, drafted, and adopted the Second Amendment, but the evidence (according to Kates) suggests that it was precisely by protecting the individual in his right to keep and bear arms that the Framers intended to protect the militia. As long as individuals had the fundamental right to keep and bear arms, unburdened by government, the militia would always exist. “The one thing all the Framers agreed on was the desirability of allowing citizens to arm themselves,” he wrote in his article. The Second Amendment was designed to keep the government from disarming the civilian population. And this makes sense being that it was the King George’s command to disarm the colonists that led to the shots that started the fight for independence. [Ibid]

In his research into the debates of the states in their ratifying conventions (1787-1790), Don Kates found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights. “Amending the Constitution to assure the right to arms was endorsed by five state ratifying conventions. By comparison, only four states suggested that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed, and only three states suggested that freedom of speech be guaranteed.” [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review].

While the wording of the Second Amendment had confused generations of Americans, Kates sought to actually understood what those words meant to the Founding Fathers (which is an “originalist” approach). Supporters of the “Militia Theory” of the amendment saw the grant of the right to keep and bear arms “to the people,” which seemed to indicate a collective right. That is, only when individuals assembled to form a militia does the Second Amendment protect their right to have and bear arms. It would also offer guidance as to which firearms would likely be protected. But Kates’ Michigan Law Review article offered a different explanation. A simple look at the Bill of Rights shows many other examples of provisions where the Founding Fathers and drafters took the phrase “the right of the people” to mean individual rights. The First Amendment, for example, refers to the right of the people…   to petition the government for a redress of grievances.” The Fourth Amendment refers to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Tenth Amendment explicitly distinguished “the people” from “the States,” providing that the “powers delegated” to Congress “are reserved to the States respectively, or to the People.” So, then, a reading of the Second Amendment…   “the right of the people to keep and bear arms, shall not be infringed” would indicate that an individual right to be armed is articulated. [Ibid]

In 1989, one of the foremost liberal constitutional law professors in the country, Sanford Levinson, published an article in the Yale Law Journal endorsing Kates’ view of the Second Amendment. [Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Review 99 (1989): 637].

In the years following Kates’ article in the Michigan Law Review, and particularly in the years 1989-1995, more academic research was done regarding the Second Amendment than had been done in the previous 200 years.

Kates would become the most influential proponent of the view that the Founding Fathers intended the Second Amendment to guarantee the right of private individuals to own firearms for their protection and that of their families.

So then comes the turn of the century… early 2002. Legal scholars began to wonder what exactly is the nature of the right guaranteed by the Second Amendment. There has been growing scholarship on the original meaning of the Second Amendment which tended to protect both the right to bear arms to serve in a militia and to bear arms for self-protection yet the prevailing earlier view had been the Collective or Militia Theory only.

What does the Second Amendment really mean? Does it only assure Americans that Congress would NOT have the power to destroy state militias by disarming the people? Or does it also assure Americans that Congress will NOT have the power to deny their right to have firearms for self-protection?   Does it confer a Collective right or also an Individual Right?

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.”   [Collective Right]

“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.”   [Individual Right]

OR, are there two types of gun rights articulated? Are there two types of rights that “Shall Not be Infringed” – the right of a state to have a well-regulated militia (hence, individuals, which necessarily comprise the militia, must have the right to keep and bear arms to serve in it) and right of the individual to keep and bear arms for personal protection. Again, both of these reflect a general right of self-defense and preservation and both absolutely are grounded in the right of the individual to keep and bear arms.

The question was this: Would the Supreme Court be willing – finally – to rule on a modern-day Second Amendment case? Would the time be right? Would the Court be likely to embrace the new and growing view of the Second Amendment, which is that it guarantees the individual a right to keep and bear arms for self-defense and self-protection (including against a tyrannical government)?

At a happy hour in DC in early 2002, two young lawyers who worked at the Institute for Justice, Clark Neily III and Steve Simpson, were drinking and talking constitutional law – always a powerful combination. Their discussion turned to the right to bear arms. They noted that for too many decades, the federal courts held that the Second Amendment protected only the right to have guns for the purpose of serving in a state militia, but that over the past 15-20 years or so, there have been important developments in the understanding and history of the amendment. Characterizing themselves as libertarians, the believed that it is individuals who should be able to decide for themselves how best to safeguard their lives and to protect their homes and their families, without government insinuating its political agenda. In their alcohol-induced legal excitement, they suggested that the time might be ripe to get the Supreme Court to reconsider the meaning of the Second Amendment.

The Growing Scholarship and the Shift in the Understanding of the Meaning of The Second Amendment:

  • Robert Sprecher’s article in the American Bar Association Journal (1965)
  • Don Kates’ article in the Michigan Law Review (1983)
  • Sanford Levinson’s article in the Yale Law Journal (1989) .
  • President George W. Bush, through his Attorney General John Ashcroft, announced his administration’s rejection of long-standing White House policy regarding the Second Amendment (Bush rejected the Militia Theory in favor the Individual Right’s view). The NRA, a major backer of Bush, supported him on this policy change.
  • In 2001, the Fifth Circuit Court of Appeals (in Texas) took Ashcroft’s cue and held that earlier rulings interpreting the Second Amendment to apply only to state militias had been wrong. “The original meaning of the Second Amendment was to guarantee individuals, not just militias, the right to bear arms.” [United States v. Emerson]. ** This case marked a profound shift in Second Amendment jurisprudence.
  • In the 1980’s, President Ronald Reagan’s attorney general, Edwin Meese III sought to add as many strong conservative judges and justices to the federal court system. He particularly sought to appoint those who adopted the philosophy of Originalism. During his first two years in office, President Reagan appointed half of the federal judges in America, along with three new Supreme Court justices.

The Supreme Court declined to hear the Everson case. Everson was a gun owner who had threatened to hurt innocent people, and because of his threats, had a restraining order against him by a court of law. Perhaps the Court declined to take the case because the person challenging the gun control law, Timothy Joe Everson, was a dangerous man; he was an offensive challenger. Perhaps, as Neily and Simpson, reasoned, the Supreme Court might be more inclined to hear a Second Amendment case if it involved a law-abiding person who simply wanted or needed to own a gun for self-defense.

 

BUILDING THE PERFECT CASE (the “Test” Case)

First, of course, the Court has to be receptive to what the lawyers want to ask of it, which is to abandon the Military Theory of the right to keep and bear arms in favor of an Individual Right to do so. Was the Supreme Court conservative enough at the time? At the time (2002-2005), the conservatives members were Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas, and Chief Justice William Rehnquist, with Anthony Kennedy as the swing vote. Liberal members were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Stephen Breyer. [Sandra Day O’Connor stepped down in 2005, and President Bush nominated John Roberts to replace him. But just before the Senate Confirmation Committee was set to act, Rehnquist died unexpectedly. So Bush nominated Roberts to replace him as Chief Justice and Samuel Alito to replace O’Connor. Roberts was confirmed in September 2005 and Alito was confirmed in Jan. 2006].

The Court was conservative compared to the progressive Warren and Burger courts. Earl Warren was Chief Justice from 1953-69 and presided over such landmark cases as Brown v. Board of Education (1954), Engel v. Vitale (1962) and Abington v. Schempp (1963), which took prayer and Bible readings out of schools, respectively), Griswold v. Connecticut (1965), somehow finding a blanket right to privacy and thus serving as the precursor to Roe v. Wade, and enlarging due process rights for criminal defendants (including Miranda rights and publicly-funded attorneys). Warren Burger was Chief Justice from 1969-1986 and presided over such cases as Roe v. Wade (1973) which articulated the right to an abortion, Regents of the University of California v. Baake (1978) which upheld affirmative action policies in universities, and several cases defining the limits of free speech and free press.

A good case for the justices of the Supreme Court to re-address the Second Amendment is one with sympathetic, law-abiding plaintiffs who have an understandable reason to be armed, preferably ordinary individuals who rightfully fear violent criminals or who live in a crime-ridden area. The best-case scenario would be to have individuals who have actually been threatened with harm or death or who have already been victims of crime. A good case would be one that reaches the ultimate merits of the issue (which is that the Second Amendment affirms a constitutional and individual right to keep and bear arms) and not be decided on any extraneous issues. A good case would have constitutional significance.

Neily and Simpson began to plan on how to get a Second Amendment case to the relatively conservative Supreme Court.

(I)  The first decision to make was which city’s gun control law would they target. The easy answer was Washington DC.

(a) It was the strictest gun control law in the nation

(b) Under the law, everyone, even law-abiding citizens, were banned from owning a handgun

(c) Even if an individual owned a shotgun or rifle for a legal purpose under the law (hunting), it would be ILLEGAL (a crime) to use that legally-owned firearm for self-defense should an armed robber or murder break into his home

(d) DC is technically ruled by the federal government; it is not a state but rather, a federal territory. Although DC was granted “home rule,” the Constitution gives Congress the ultimate authority over the area. (That is why Ron Paul was able to seek and pass legislation to try to limit the effect of the gun-control law). The Second Amendment (as all of the Bill of Rights) is a restriction only on the federal government. [That is, by challenging DC’s gun law instead of, say New York City’s gun law, Neily and Simpson would only need to convince the Supreme Court that the Second Amendment guarantees the right of individuals to have guns. That would be a challenge, given the Miller case precedent, but it would be less difficult than having to persuade the Court to also rule that the amendment applies to the States through the 14th Amendment. The McDonald v. City of Chicago case would do that in 2010].

(II)  Neily and Simpson were relatively unknowns, with no money to build the case. They would need to find the perfect person to finance the case. A friend of Neily’s, a fellow co-clerk in DC and a wealthy individual, Robert Levy agreed to finance. He was then a senior fellow at the Cato Institute. (Levy decided to go to law school at the age of 50. Although he was absolutely brilliant and could have gone to any law school he chose, he decided to attend George Mason Law School because it was a conservative law school. Its professors lean clearly to the right unlike the professors at almost all other law schools). At this point, Simpson had to drop out because of the pressures of his job.

III. Next, Neily and Levy had to find a suitable attorney to lead the case. Neither Neily or Levy considered themselves capable to do so. The decided on a young libertarian lawyer named Alan Gura who they remembered in their libertarian circles as a proponent of both guns and marijuana being legal (“individuals have the right to do with their lives without government interference”). Gura was sharp but he had never argued a case before the Supreme Court.

IV.  The second major decision to make was to select the Perfect Plaintiff (ie, the person to represent the issue, the lead name on the case).

(a) Dick Heller. Dick Heller was a white man who worked as a security guard at a federal building in Washington – the Thurgood Marshall Federal Judicial Center. He lived in DC across the street from an abandoned federal housing project. That housing project was built in the 1960’s, in furtherance of LBJ’s “war on poverty.” Thirty years later, the units were run down and decrepit – with rotted out walls and collapsing ceilings. The only people who found the place habitable were heroin and crack addicts. Consequently, a drug gang moved into the area and operated out of the complex. The drugs and the gang brought with them violence – routine shootings and killings. The police were happy to ignore the area. But Dick Heller had to exist in this neighborhood. At night he would hear the gunshots and try to ignore them. One night he returned home to find a stray bullet had struck his front door. At work, he carried a handgun on his hip to protect the people who worked there (federal employees), but because of DC’s then 20-year-old gun ban, he had to leave it there when he returned home each day. In 2002, prompted by the suggestion of a close friend, Heller applied for a gun permit and went through the frustrating and futile exercise of applying for a gun permit. Also at the suggestion of his friend, he documented the ordeal as a testament to the practical impossibility of obtaining and keeping a gun for home protection in the district.

While there was rarely any threat of violence at work, the situation at home was very different. There existed a real threat, an actual threat, of violence in his neighborhood. Yet the DC gun control law banned him from possessing a firearm to defend himself.

The only negative that Neily, Levy, and Gura could find (which might have an unfavorable impression on the Court) was that Heller was overly obsessed with his gun rights and was prone to making potentially disturbing political statements.

(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation – smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: “Bitch, I’ll kill you! I live on this block too.” Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: “Get a gun.” The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: “The only thing between me and somebody entering my home are harsh words. That’s all I have.” Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.

Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.

 

THE ROCKY ROAD to the SUPREME COURT:

1).  Gura filed the lawsuit in the District Court for the District of Columbia on February 10, 2003. As mentioned above, the lead plaintiff chosen was Shelly Parker and so the case name, as filed, was Parker v. District of Columbia.

2).  After Gura filed the complaint against the District of Columbia, the NRA, totally unexpectedly, filed its own lawsuit.. In that lawsuit, the NRA not only asserting the “Individual Rights” view of the Second Amendment but also including what is called “trap doors” – additional, extraneous claims that the courts could use to decide the case by avoiding the Second Amendment question. Neily and Simpson decided to bring the case, and Levy put his own money behind it, NOT to simply strike down the DC’s handgun ban. They wanted to resurrect the Second Amendment. The NRA wanted just the opposite. Note, the NRA hired as its leading attorney the renowned Steve Halbrook – the nation’s leading expert on the right to bear arms. Halbrook was Neily and Levy’s first choice, but unfortunately, he was too expensive for their budget. Halbrook had plenty of experience trying gun cases; Gura had none.

Gura did not expect the NRA’s lawsuit. He had thought the organization would have supported their lawsuit to assert the Individual Rights view of the Second Amendment. The NRA’s concerns, however, were two-fold (and conflicting): (1) On the one hand, it didn’t want to challenge the prevailing “Militia Theory” view of the Second Amendment because gun control laws were their bread and butter. Nothing advances its fund-raising efforts more than alerting gun enthusiasts and club members that their gun rights are being infringed by gun-control laws. (2) On the other hand, the NRA was in favor of the individual rights view but they thought the timing for such a lawsuit was not right – they could not be sure that they had the necessary votes on the Supreme Court to shift from the Militia view. [Justice Sandra Day O’Connor had disappointed conservatives by siding strongly with progressives on abortion and on affirmative action, and Justice John Paul Stevens was uber liberal and anti-gun. Both were likely to be replaced by President Bush].

3).  The NRA sought to have the cases consolidated, thereby hijacking Gura’s case by bringing in the “trap door” claims. Also, the NRA hoped that it would be Halbrook, and not Gura, who would argue the case. Essentially, the point of the NRA’s litigation tactic was this: “If we can’t control the litigation, there won’t be any litigation!” Luckily, in July 2003, the district court judge, Emmett Sullivan, reached a decision – the two cases should not be consolidated. Alan Gura successfully survived the first hurdle.

4).  Unable to derail Gura’s lawsuit with consolidation, the NRA tried Plan B – It convinced Senator Orrin Hatch to introduce a bill in Congress, the “District of Columbia Personal Protection Act” which would over-turn the DC gun law and permit DC residents to possess handguns. If the bill passed then Gura’s lawsuit would be moot and thrown out of court. [The bill passed the Senate and was fast-tracked to the House floor in 2007 where it was expected to pass, but then the shooting at Virginia Tech happened on April 16 and it doomed the bill].

5).  In March 2004, Judge Sullivan ruled that the court was bound by the US v. Miller ruling (1939) which held, although ambiguously, that the Second Amendment applied only to state militias and therefore dismissed Gura’s lawsuit. Gura actually expected this. What he didn’t expect was how long it would take for Sullivan to make it. In the meantime, the judge handling the NRA case had also issued a dismissal. Because the NRA case was dismissed first, it meant that Steve Halbrook had the chance to file an appeal before Gura did – which he did. Timing is everything. Here is why it mattered: Halbrook filed an appeal on behalf of the NRA and so when Gura filed his appeal, the DC Circuit Court (of Appeals) ruled that Gura’s case would be put on hold pending the ruling of the appeal in the NRA case. In other words, Halbrook would get to argue his case before a panel of appellate judges and Gura would not. The NRA, in effect, now had control of the litigation regarding the DC gun control law.

6).  In 2005, the DC Circuit Court heard the NRA’s appeal. Being persuaded by an argument that DOJ Attorney General John Ashcroft made asserting that the plaintiffs in the NRA’s case lacked standing, being that none of them had tried to register a handgun nor been arrested for having one, the NRA’s lawsuit was dismissed. [Remember that Dick Heller had standing; he had an actual injury. He not only applied for a permit for his revolver but he documented how frustrating and futile the process was]. Gura survived yet another hurdle, because with the NRA case out of the picture, the DC Circuit could then hear Parker’s appeal.

7).  Gura appeared before the 3-judge panel of the DC Circuit in early December 2006. The attorney for the District of Columbia, Todd Kim (a distinguished Harvard Law School graduate) challenged all of the plaintiffs as not having standing to sue the District of Columbia over its gun law. He insisted that none of them had really been hurt; none had suffered a direct injury as a result of the gun ban. The panel agreed as to all plaintiffs except Dick Heller. Heller had been directly harmed. He had applied for a gun permit and was denied. And so, in 2007, with the DC Circuit Court’s ruling, Parker v. District of Columbia was renamed Heller v. District of Columbia, with Dick Heller as the sole plaintiff.

8).  In February 2007, the DC Circuit handed down is decision in Parker v. District of Columbia (renamed, Heller v. District of Columbia), with 2 of the 3 judges ruling against the District of Columbia. The majority opinion, written by Judge Silberman, strongly endorsed the Individual Rights view of the Second Amendment. “The Second Amendment protects an individual right to keep and bear arms.” Silberman’s arguments were very closely aligned with the arguments made twenty-five years earlier by Don Kates in his Michigan Law Review article. “The People,” whose right is guaranteed in the Second Amendment, are the same individuals who are guaranteed the rights enumerated in the First and Fourth Amendments, and the “Militia” refers to all able-bodied citizens who were expected to have their own guns, to be trained and experienced, and even comfortable, in their use when called into service. In other words, because able-bodied citizens had the right to keep and bear arms, they could be called to serve in a state militia. Arming the militia may have been the primary reason the Founding Fathers wrote the Second Amendment, as Silberman wrote, but it was not the only one. The right to bear arms that the colonists (and our Founding Fathers and founding generation) inherited from England also included the right to defend one’s home from violent attack and the right to defend the individual from the tyranny of government. Reaching the ultimate issue, the constitutionality of the DC gun ban, Silberman concluded that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated the Second Amendment’s right to keep and bear arms for the purpose of self-defense.

9).  Unfortunately, the ruling only applied in the District of Columbia. It didn’t stand as binding precedent anywhere else in the country. Neily, Levy, and Gura’s goal all along was to try a Second Amendment case with constitutional significance. Their goal was a definitive ruling by the US Supreme Court. The problem, however, was that the losing party has the right to file an appeal and not the winning party. If the District of Columbia decided not to seek an appeal and instead, just amend its gun law, Neily, Levy, and Gura were screwed. But as luck would have it, on September 4, 2007, the District of Columbia filed a “Writ of Certiorari” with the Supreme Court, requesting the court to review its case.

10).  On November 20, 2007, the Office of the Attorney General for the District of Columbia received word that the Supreme Court had agreed to hear their appeal.

11).  Also in 2007, in anticipation of the upcoming case, the state of Montana’s lawmakers passed a resolution demanding that the Supreme Court hold that the Second Amendment guarantees an individual right to bear arms. The resolution said that when Montana agreed to join the Union in 1889, its people believed that the US Constitution protected the right of individuals to possess guns for self-protection, and not just a right tied to state militias. According to the Resolution, Supreme Court ruling rejecting the individual rights view of the Second Amendment would “violate Montana’s Compact with the United States” and Montana “reserves all usual rights and remedies under historic compact/contract law if its Compact should be violated.” In other words, the Second Amendment’s meaning as an individual right to keep and bear arms was so critical that Montana was threatening to secede from the Union should the Court rule against such a view.

12).  On March 18, 2008, the Supreme Court heard oral arguments in the Heller case. Walter Dellinger represented the District of Columbia and Alan Gura represented Dick Heller. Each lawyer was initially given 30 minutes to argue the merits of its case (although they were eventually given some extra time). U.S. Solicitor General Paul Clement was given 15 minutes to present the federal government’s views. Almost immediately, Scalia’s questions and comments made it abundantly clear that he was strongly in favor of the Individual Right view of the Second Amendment. And Gura was fairly confident that Kennedy would agree with the Individual Rights view as well. Heller’s team was optimistic.

13)  The case was decided on June 26, 2008. On that day, the lawyers were called to the Supreme Court building and waited for the justices to file in and take their seats. After an opening opinion was read, Chief Justice John Roberts announced: “Justice Scalia will have our decision in 07-290.” That was the docket number of the Heller case. Once it was announced that Scalia was the author of the opinion, “that was when we knew the opinion was in our favor,” said Gura. It was the first time in American history that a gun control law violated with Second Amendment to the Constitution !! It was a long-time coming, but the Supreme Court finally articulated the correct meaning and intent of the Second Amendment.

 

THE HELLER OPINION IS HANDED DOWN –  [District of Columbia v. Heller, 554 U.S. 570 (2008). https://www.supremecourt.gov/opinions/07pdf/07-290.pdf]

The Supreme Court, in Heller, AFFIRMED the DC Circuit Court ruling.

The opinion, written by Justice Scalia, can be summed up by these excerpts:

We turn first to the meaning of the Second Amendment…. In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent Heller argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

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. The Amendment could be rephrased, “Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Let’s first look at the “Operative Clause.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. There are three provisions of the Constitution that refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights.   Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. 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.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. At the time of the founding, as now, to “bear” meant to “carry.” In 1998, Justice Ginsburg wrote that “surely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicates: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals. By the time of the founding, the right to have arms had become fundamental for English subjects. According to William Blackstone, whose works (“Commentaries on the Laws of England”), this Court has held, constituted the preeminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. [See Blackstone, Volume 1, pp. 136, 139–140]. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense.” (pg. 139)

Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Anti-Federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” [See Blackstone’s Commentaries, Vol. 1; pp. 145–146 (1803)]

Thus there seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the US Bill of Rights’ Second Amendment. Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defense is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first principle is a declaration that a well-regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”—statements that make no sense if the right does not extend to any individual purpose.. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. He then equated the English right with the Second Amendment: “§1891. A similar provision [to the Second Amendment] in favor of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.’ But under various pretenses the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected.

As the Tennessee Supreme Court recognized thirty-eight years after Story wrote his Commentaries, “the passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. In addition, in a shorter 1840 work, Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self-defense; without this right to use the guaranty would have hardly been worth the paper it consumed.” In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.”

19th-century pre-Civil War cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defense of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defense” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. In 1833, the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defense.” 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “The right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.”

Similarly, it was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. J. Ordronaux, in his 1891 book “Constitutional Legislation in the United States” 241–242 (1891), wrote: “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . It was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.”

Justice Scalia distinguished the United States v. Miller (1939) ruling this way: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment…. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, 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.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government (the federal courts) – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people.

Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field. But whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Justice Scalia spent 45 pages of the majority opinion addressing the history, and especially the original meaning and the intent of the Second Amendment (summed by appropriate excerpts above). He distinguished the United States v. Miller (1939) case by pointing out that the Court didn’t even attempt to do a thorough examination of the Second Amendment, and then announced that the clear purpose of the Second Amendment was, and IS, to guarantee an individual right to Keep and Bear Arms for self-defense. Finally, he concluded by announcing that, because the DC Gun Ban denies Dick Heller and other DC residents of this right, it is unconstitutional.

The Heller decision would be the first time in American history that a gun control law was found to violate the Second Amendment to the Constitution.

 

CONCLUSION (and POST-HELLER GUN RIGHTS):

We say the Heller opinion was an “ORIGINALIST” opinion because the analysis of the Second Amendment was based purely on an examination of history, with an emphasis on what the words and intent of the “Right to Keep and Bear Arms” meant at the time it was adopted by the American colonies and then when they became states and then finally when they incorporated into the federal Union with the Constitution.

Indeed, District of Columbia v. Heller is the most significant case which applied “originalism” in analyzing the Constitution, and together with the companion case, McDonald v. City of Chicago (2010), addressed below, are the most significant Second Amendment cases to date. We can expect another similarly significant case this fall – New York State Rifle & Pistol Association v. City of New York. The New York State Rifle & Pistol Association is the NY state chapter of the NRA.

Originalism is a concept regarding the interpretation of the Constitution that asserts that all terms and provisions in the Constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. Justice Scalia was the most famous proponent of Originalism.

In 2010, the Supreme Court heard the companion case to HellerMcDonald v. City of Chicago. Heller announced what our Second Amendment rights are with respect to action by the federal government. With McDonald, the Supreme Court announced what our Second Amendment rights are with respect to action by the States. The case involved a state gun control law, as opposed to a federal gun control law. The case arose in 2008, when Otis McDonald, a retired African American custodian living in a neighborhood fraught with robberies, shootings, and other crimes, and others filed suit to challenge provisions of a 1982 Chicago law that, among other things, generally banned the new registration of handguns and made registration a prerequisite of possession of a firearm. McDonald alleged that the law violated his right to possess and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in District of Columbia v. Heller. In reaching a ruling in McDonald’s favor, the Court held that the Second Amendment is one of the liberty rights to be incorporated on the states thru the 14th Amendment, and therefore states cannot pass laws to violate or burden that right.

Together, District of Columbia v. Heller and McDonald v. Chicago cases articulate the view that the Second Amendment recognizes and protects an individual’s right to keep and bear arms for self-defense. The cases reach that conclusion after an in-depth and judicious review of the history and roots of the amendment.

However, and unfortunately, the cases have not seemed to stop the passage of gun-control laws or talk of more and more federal gun-control laws. Besides the general ignorance of many of our federal legislators and our state legislators, and the ever-important goal of disarming citizens to prevent their violence upon one another (always the risk in a free society), there are some limitations with the ruling and clearly ways government can get around it (or frustrate the exercise of the right protected in the Second Amendment:

(1) First of all, Dick Heller found no relief, even after spending 7 years litigating his challenge and winning perhaps one of the most significant cases in the Supreme Court. The ruling was not quite the sweeping gun-freedom victory he expected and it certainly didn’t go far enough to abolish burdensome gun permitting regulations, especially in his home of DC. Despite his court victory, he still was unable to acquire a gun permit. In the weeks since the Heller decision, the city hastily enacted a new and lengthy set of regulations and so when Heller went to the station with his revolver, he was told that he didn’t bring the many documents that the district had decided were required to register a handgun. He could take his revolver back home, he was told, but he would still have to keep it trigger-locked and unloaded. Not much had changed.

(2) Both the Heller and McDonald rulings addressed the right to keep and bear arms in one’s home. The lawsuit did not address whether the Second Amendment guarantees any right beyond that and hence the courts did not rule so. In October (of this year, 2019), the Supreme Court will hear a case, New York State Rifle & Pistol Association v. City of New York, which addresses this very question.

(3) Related to the question of whether the Second Amendment extends to gun rights outside one’s home, the Heller and McDonald rulings also leave open the question of whether conceal carry is covered.

(4) Scalia’s majority opinion in the Heller case included this proviso: “Nothing in our opinion should be taken to cast doubt” on longstanding regulations such as restrictions on felons “or laws imposing conditions and qualifications on the commercial sale of arms.” In his opinion, he wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Apparently, Scalia was carving out areas where he believed Congress could rightfully legislate with respect to the Second Amendment. According to Robert Levy, who financed the lawsuit: “Everybody understood — or at least any reasonable person understood — that we can’t have 11-year-olds with machine guns in front of the White House when the president is delivering a speech. Some weapons can be regulated, some people can be regulated, like minors and felons and mentally incompetent people, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.” Why can minors be regulated with regard to firearms for self-defense? The probable answer is because they are mature enough and their brains have not developed to the point where they can intelligently and rationally predict or comprehend the consequences of their actions. Why can felons and mentally incompetent people be regulated? Liberty is understood as the free exercise of one’s inalienable and essential rights, to the point that such exercise doesn’t burden or violate another person’s equal rights. Felons have already proven that they are incapable of conforming their conduct to be consistent with the rights of others and hence our society deems that a rightful punishment is to deny them access to firearms. They cannot be trusted. Incompetent individuals in many cases can’t control their actions, thoughts, re-actions. They also cannot responsibly conform their conduct so as not to harm or invade the liberties of others. They are often unpredictable.

(5) In the Court’s eyes, which part of the Second Amendment will control what types of “arms” are covered? Will the courts use the prefatory clause (the militia) or the operative clause (individual right)?

(6) Members of the US Congress clearly have not read the Second Amendment, the Preamble to the Bill of Rights, or the Heller and McDonald opinions. They continue to push for more and more gun control and policies to permit government confiscation of firearms (Red Flag Laws). Ever since Andrew Jackson and then Abraham Lincoln, US presidents have argued that the office can assume undelegated powers (ie, unconstitutional powers) as long as the country or the American people need it to be so. In other words, they implicitly view the Constitution as either a “living, breathing document” or they have treated it as a dead document, something that presidents can choose to guide them but certainly not to confine them. The US Congress has, over the same time, done the very same thing and the courts have very often put a rubber stamp on their power grabs. It appears that Congress and the states will continue to violate the Second Amendment by claiming that they need to keep people, schools, federal buildings, churches, etc safe. If their laws are unconstitutional (note that each state has their own Bill of Rights, including a Second Amendment version, in their constitutions), they will simply amend the laws or pass new ones which may also be unconstitutional, but in the meantime will burden gun access and ownership, and will restrict carry.

In July 2008, less than a month after the Heller opinion was handed down and just after he still was unable to get a permit for his revolver, Dick Heller filed a lawsuit against the District of Columbia. (Heller v. District of Columbia II, or “Heller II”) challenging the new regulations DC lawmakers quickly put in place to save their gun law.

The case has been far more time-consuming than Heller expected. After parting ways with Gura and Levy, Heller enlisted Stephen Halbrook as his lawyer, the Second Amendment attorney that the NRA hired to try to block the initial Heller lawsuit. Again, after 7 years of litigation (punctuated by repeated changes by DC council’s to its gun regulations), Halbrook managed to win a ruling by a DC Circuit of Appeals panel in September 2015 invalidating 4 of the 10 restrictions Heller challenged. In 2016, the full DC Appeals Court agreed with the ruling. Halbrook and Heller have not signaled if they will seek Supreme Court review. [Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please”]

The provisions Heller II successfully invalidated include a requirement to renew gun permits every three years, a limit of one handgun registration per month, and requirements for permit holders to pass a test on D.C. gun laws and show up at police headquarters with the gun to be registered. Left intact, however, were the District’s registration requirement for long guns, a required safety class and registration fees for permit holders, and other obstacles to the sort of frictionless, gun-friendly city Heller wants D.C. to be. In October 2015 in an interview published in the magazine America’s 1st Freedom, the NRA’s official magazine. He said: “We still have to be registered and fingerprinted, so the worst part is we will still be treated like criminals, but the criminals won’t be standing in line to get in.” [Ibid]

Heller, who is now 76 years old, has been frustrated that he had to waste 14 years of his life just to have the rights Americans won and secured a long time ago vindicated in an American court. He assumed that officials who take an oath of office would be on the same side of the American people.

Later in 2008, after the Supreme Court handed down the Heller ruling, Dick Heller created the Heller Foundation. He then paired with the U.S. Bill of Rights Foundation in order to promote “a world where arms and self-defense rights are considered as essential to human life as food and water.” In such a capacity, on November 2, he signed on to an amicus brief filed by Larry Pratt and the organization he founded, Gun Owners of America, in a lawsuit that challenged the federal machine gun ban (passed as part of the 1986 Firearm Owners Protection Act). [Hollis v. Lynch]. Gun Owners of America argued that that possession of machine guns by Americans is compatible with the Second Amendment and that the amendment is not about not about hunting or target shooting, but about self-defense against individuals and/or the state. The amicus brief characterized machine guns as “the lineal descendants of founding-era firearms” fulfilling the ultimate purpose of the Second Amendment, “to allow the people to take up effective arms against a tyrant.” On June 30, 2016, the U.S. Court of Appeals for the 5th Circuit issued its unanimous opinion upholding the federal machine-gun ban.

What can we expect in the post-Heller and post-McDonald era with respect to gun rights? I think Robert Levy said it best: “Some weapons can be regulated, some people can be regulated, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.”

 

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REFERENCES:

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

Don B. Kates Jr, “Why a Civil Libertarian Opposes Gun Control,” Civil Liberties Review 3 (June/July and Aug./Sept. 1976).

Don B. Kates, Jr. “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).   Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf

Robert A. Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965).

William Blackstone, Commentaries on the Laws of England (1769).

Joseph Story, Commentaries on the Constitution of the United States (1833).

Malcolm, To Keep and Bear Arms (1994); pp. 31–53.

Dumbauld, The Bill of Rights and What It Means Today (1957); pg. 51.

William Rawle, A View of the Constitution of the United States of America (1825); pg. 122.

Supreme Court Opinion: District of Columbia v. Heller, 554 U.S. 570 (2008)https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Complaint: Parker v. District of Columbia (2003), in the District Court for the District of Columbia – https://object.cato.org/sites/cato.org/files/pubs/pdf/gunsuit.pdf

Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please,” The Trace, March 20, 2016. Referenced at: https://www.thetrace.org/2016/03/dick-heller-second-amendment-hero-abolish-gun-regulation/

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

“Post Heller Jurisprudence,” Congressional Research Service, Updated March 25, 2019. Reference:   https://fas.org/sgp/crs/misc/R44618.pdf

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

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

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

McDonald v. Chicago, 561 US 742 (2010)

“North Carolina’s Ratification,” US Constitution – https://www.usconstitution.net/rat_nc.html

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights. Referenced at: http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

 

APPENDIX:

THE ROOTS OF THE SECOND AMENDMENT (taken from Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC; pp. 99-105, and Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

The roots of the Second Amendment go back to the days of feudal/medieval England, to the Militia laws. Men in England, and sometimes even teen boys were required by law to have firearms and to be trained in their use should the King need to call up a militia. Henry VIII, who reigned from 1509 – 1547, lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!” The King had no standing army and therefore the Militia Laws were very important. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness. In other words, citizens had a DUTY to keep and bear arms.

One hundred fifty (150) years later, in 1689, with the English Bill of Rights, this medieval “duty” to keep and bear arms became an “indubitable right.” (aka, an unquestioned right, a non-disputed right, a fundamental right, an inherent right). And the English Bill of Rights was a direct precursor or template to our US Bill of Rights.

How did this all happen?

Gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. [Remember, Parliament is the so-called “people’s house; this is one of the rights the people wanted King John to recognize in the Magna Carta. If they were to be taxed, they wanted to have representation in those decisions]. Parliament refused to tax the people to provide the funding for the wars that Charles wanted to fight and so Charles disbanded the Parliament. He did so several times. He went on to tax the people himself, obviously violating their right to representation. Eventually, in 1642, civil war broke out and certain members of Parliament (called a “rump” Parliament), led by Oliver Cromwell, brought charges against Charles for high treason. He was captured, tried, and beheaded in 1649. His sons, the future King Charles II and King James II had fled to France at the time. At this point the monarchy was abolished and a republic established (the commonwealth of England).

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did. The monarchy was restored. But what did Charles come home to? He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown. And at first, the Act was actively enforced. In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !

Charles II died and having produced no heirs, he was succeeded by his brother James II. James II was a Roman Catholic, which concerned a lot of people, most of whom were Protestant (they believed Catholics were agents of the Pope, who they suspected of still trying to regain influence over the English kingdom.). But that was tolerated because he had no sons and his two grown daughters (Mary and Anne) were both Protestants; there seemed no threat that he would re-establish Catholicism in England. [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

Within months of King James II’s ascension, two rebellions were launched to attempt to topple him from the throne. James was able to suppress them easily, but the experience led him to conclude that he needed a sizeable standing army to protect him from future rebellions. He also thought that he would be better served by an army that included some friendly Catholics. Even though it was against the law, he appointed Catholics to positions of authority within the military. The Archbishop of Canterbury, one of the most important figures in England, petitioned James to reconsider some of his policies but James responded by imprisoning him in the Tower of London. When members of Parliament objected to his conduct, James turned around and suspended Parliament for the rest of his reign. He was within his recognized authority as King to do so, but the controversial move inspired his opponents to plot to have his reign end prematurely. [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 100]

To lower the risk of a rebellion, James decided to take advantage of certain laws that were passed before his reign, particularly the Militia Act of 1664 and the Game Act of 1671, to confiscate as many firearms from potential political opponents as he could. The Militia Act of 1664 authorized the King’s deputies to seize the weapons of anyone deemed to be “dangerous to the Peace of the Kingdom.” To James, that meant all Protestants, who comprised 98% of the English population. He ordered gunsmiths to deliver up lists of all gun purchasers and the guns purchased. He used the Game Act of 1671, which, in the name of protecting wild animals from over-hunting, barred gun possession by anyone “not having Lands and Tenements of clear yearly value of one hundred pounds,” to disarm commoners. In other words, gun ownership would be limited to a certain class of subjects. [Ibid, pp. 101] According to the historical record, the orders were apparently not carried out. But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

In 1688, James’ wife gave birth to a son, alarming Protestants. Since a son would be heir to the throne, the threat of a Catholic dynasty was all of a sudden a very real possibility. James’ 26-year-old daughter Mary was among those who suspected that the newborn was not even James’ child. Her husband, William of Orange, who was Dutch, shared her suspicions. Personally, he had aspirations of sitting on the English throne. It was finally in 1688 that the English people had had enough. A group of eminent English noblemen who were determined that James needed to be removed from power invited William and Mary to England and suggested that they form an army to help them should they need it. With Dutch soldiers, William launched an attack, and James, who lacked any solid support from either the people of England or even his own army (or from Parliament) was forced to abandon the throne. With barely a fight, James fled to France, abdicating his throne in favor of his daughter and her husband – William and Mary. In early 1689, the Parliament anointed William and Mary as joint sovereigns. They would rule as King and Queen together… but there would be conditions. [Ibid, pp. 101]

To scholars of English history, the toppling of King James II became known as the Glorious Revolution (or Bloodless Revolution). What made the revolution so glorious was not just that James was forced to flee and that Protestants returned to power without much bloodshed, but that the English people finally had a chance to secure their rights and liberties in a more permanent document. As a condition to being offered the throne, William and Mary had to agree to abide by the laws of Parliament and exercise only limited, rather than absolute, power. They also had to promise to respect the individual rights of Englishman – rights that were initially petitioned for in the Magna Carta of 1215, re-presented in further petitions, and codified, finally, on December 16, 1869, in what was called the English Bill of Rights. [Ibid, pp. 102]

The English Bill of Rights proclaimed that James had violated “the Laws and Liberties of this Kingdom.” By imprisoning people like the Archbishop for merely complaining about the king’s edicts, James had trampled on the right of Englishmen to petition the government for redress of their grievances. By arresting people for no lawful reason, he had violated the rights of Englishmen to due process of law. “By causing several good Subjects, being Protestants, to be disarmed,” he had ignored “true, ancient, and indubitable rights.” The English Bill of Rights reaffirmed the importance of these rights, including a provision on personal weapons. “Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.” [Ibid, pp. 102]

In the years after the Glorious Revolution, the right of English Protestants to have guns was recognized as an individual right – a right related to self-defense self-protection, and not a right related to the duty to serve in militias. Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense and to resist a tyrannical king (or government). [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”]

William Blackstone, the 18th century jurist whose Commentaries on the Laws of England are still cited today as the authoritative account of old English law, described the English Bill of Rights as recognizing “the right of having and using guns for self-preservation and defense.” The right to have arms, he wrote, was “an auxiliary right necessary to preserve the basic rights of man: personal security, personal liberty, and private property.” English court cases from the 1700’s were in agreement. Judges, like those in the 1744 case of Malloch v. Eastly, repeatedly recognized that it was “settled and determined” law that “a man may keep a gun for the defense of his house and family.” [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 102]

Between 1603 and 1776, the rights of Englishmen became the rights of Americans. In 1661, with the constant threat of hostile Indians and hostile French and Dutch settlers, the colony of Virginia required all able-bodied men to have firearms and be trained monthly in their use. Each county had chief militia officer.

As relations with Great Britain began to deteriorate, especially after the Boston Tea Party and the punishing response by the King and Parliament with the Intolerable Acts [which shut down Boston Harbor, abolished the Massachusetts colonial government, installed a British General (General Gage) and his redcoats in its place, and established the Quartering Act], the colonists began to collect firearms and stockpile gunpowder and artillery. And not just in Massachusetts. Word was spreading among the colonies of the growing tyranny by the King.

It appeared the British Crown once again was planning to disarm political opponents.

One of the measures planned was the confiscation of colonial guns by order of the King. In 1774, King George III ordered that all exports of firearms and ammunition to the colonies cease. And the next year, he ordered British Commanders to disarm certain provinces, especially in the North. Boston, for example, was put under military occupation and General Gage was tasked to disarm the most unruly colony of all – Massachusetts.

By 1774, being made commander-in-chief of all British forces in the New World, Gage was the most powerful man in the America. When he learned from one of his many “spies” that spring that the colonists (which he termed “rebels”) were secretly stockpiling guns and ammunition in an arsenal located in nearby Concord, Gage ordered 700 troops, on April 19, 1775, to seize the arsenal (seize the weapons and destroy the ammunition). The night before, Paul Revere set on his famous midnight ride to warn the people that the British were coming to take their guns. He didn’t cry out “The British are coming, the British are coming,” as legend has it; rather, he had to whisper the message to trusted friends only for the outskirts of Boston were filled with loyalists. (Luckily there were other riders because Revere ended up being captured by the Redcoats. He was released but they kept his horse). On their way to Concord, the troops passed through Lexington where they encountered a small group of colonial militiamen. The Redcoats and the colonial militiamen stood face-to-face on Lexington Green on the morning of the 19th. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and an armed conflict between England and Massachusetts had begun. The revolution had begun.

It appeared that complete disarmament of the colonies would be inevitable.

Virginians began to stockpile their ammunition in Williamsburg, in anticipation that British troops would come to subjugate them as well. A general alarm was spreading among the colonies – fueled by men like Samuel Adams and John Hancock, Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown… just as King Charles II and King James II had done to their subjects approximately 100 years ago in England. It was this general alarm that prompted Patrick Henry to introduce resolutions at a secret meeting of the colonial legislature to raise up the militia in every county and train them as quickly as possible. He believed so strongly that this was necessary that he gave that impassioned speech we all associate with him – “I know not what course others may take; but as for me, give me liberty or give me death!”

Patrick Henry was right, war was coming. And he was also right about the intent of the British to disarm the colonies. Just weeks after his famous speech at St. John’s Church in Richmond, Virginia’s royal governor ordered British sailors to raid the armory at Williamsburg and to take the gunpowder back aboard their ships, which they did.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions with Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

So, the colonies won their independence, and the next step was to form a common government and our Bill of Rights. How did we get the language of our Second Amendment and what does it mean? First of all, our Founding Fathers borrowed liberally from the English Bill of Rights, including the right to Petition Government in the First Amendment, the right of Due Process in the Fifth Amendment, and the Right to Keep and Bear Arms in the Second Amendment. These were rights that they enjoyed and held dear as Englishmen and believed traveled with them to the New World.

Looking at the Constitutions and Bills of Right of our original 13 states, there were at least three colonial models to address the right to arms:

The Virginia Declaration of Rights read: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state….”

The Pennsylvania Declaration of Rights read: “The people have a right to bear arms for the defense of themselves and the state.”

The Massachusetts Bill of Rights read: “The people have a right to keep and to bear arms for the common defense.”

We can see the two views of our Second Amendment embodied in these colonial Bills of Rights.

Fast-forward to the US Constitution and the ratification process whereby the states were debating whether to adopt it. New York ratified it, but only conditionally – conditioned on the addition of a Bill of Rights. Virginia narrowly ratified it, but those against its adoption, most notably Patrick Henry, held all the power in state government. They were going to call for another Constitutional Convention to alter Madison’s Constitution, and they were going to appoint all anti-Federalists to the US Senate and draw up Congressional district maps to ensure all anti-Federalists were elected to the first US House. Madison, who wanted to be seated in that first government, would be shut out. The state legislature, with Henry wielding great power, had already denied him an appointment to the Senate (this was before the 17th amendment) Eventually, Madison made a compromise. If he were elected to the first US House, he promised to introduce a Bill of Rights for the States.

In fact, his state of Virginia had proposed a Bill of Rights for the new constitution, including a precursor to our Second Amendment, which included language from all three colonial models – Virginia, Pennsylvania, and Massachusetts.

On June 8, 1789, in the first US House, James Madison made true on his promise and he introduced a set of amendments to add a Bill of Rights to our Constitution. His Second Amendment read: “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.”

The first Congress shortened Madison’s proposal so that it read: “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.”

The important thing to note in this historical review is that the Second Amendment is actually two separate thoughts. It was the conscious and intentional design of our Founders to express the right to arms in the broadest terms possible, to be understood in its broadest sense.  [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”].

References:

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

A Proposed State Sovereignty Resolution Re-Asserting the Tenth and Second Amendments

Don't Tread on Me (#3)

by Diane Rufino, February 21, 2018

The following is a proposed State Sovereignty Resolution that I wrote and proposed to my legislators in the North Carolina General Assembly. I feel very strongly that the General Assembly should make it clear that the people’s right to have and bear arms is safe and secure in our state.

NORTH CAROLINA STATE SOVEREIGNTY RESOLUTION

A Bill Announcing the Intention to Nullify any and all Unconstitutional federal Gun Control Bills that the State of North Carolina and its People believe to be an Infringement of their Natural Rights of Self-Defense and Self-Protection as Recognized by the Second Amendment

The State of North Carolina asserts the following

A warm attachment to the Union of the States, to which it had pledged its loyalty in accordance with the terms of the Constitution, the compact that created it, and to that end, it has a duty to watch over and oppose every infraction of those principles which constitute the basis of that Union, because only a faithful observance of them can secure its existence and the public happiness;

Its recognition and respect for the lawful and constitutional process for altering the terms and meaning of the Constitution, including the amendments contained in the Bill of Rights, which are the two procedures listed in Article V (the Amendment Process);

The Second Amendment recognizes that a well-regulated Militia, being necessary to the security of a free State, shall not be infringed;

The Second Amendment also recognizes that the right of the people to keep and bear Arms, shall not be infringed;

The Second Amendment recognizes the natural right of Self-Defense and Self-Protection, both on behalf of the State (“a free State,” by the way) and of the individual;

The Second Amendment doesn’t grant these rights but rather, it protects them, without condition or limitation, from the reaches of the federal government, especially the US Congress and its law-making power;

The phrase “SHALL NOT BE INFRINGED” is clear and instructional on its face;

To affirm the point above further and to support it greater, the States specifically included a Preamble to explain the reason for the ten amendments to the new Constitution (amendments that were demanded by them and without them would have jeopardized and prevented the ratification of that document. The Preamble reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”;

The Preamble to the Bill of Rights makes abundantly clear that the Constitution established a federal government of limited powers, and that in those limited objects of government, the federal government is limited even further by the ten amendments added (ratified by 3/4 of the States) on Dec. 15, 1791;

Just as the Supremacy Clause asserts the supremacy of the federal government with respect to the powers delegated to it, which are “few and defined” (Federalist No. 45, written by the same man, James Madison, who authored the Constitution), the Tenth Amendment and the Preamble to the Bill of Rights assert the supremacy of the States with respect to the powers reserved to them;

That one of the reserved powers of the State is the responsibility, the duty, to prevent unconstitutional federal laws, policies, executive actions, and court opinions from infringing on the rights of its people;

The Second Amendment has a very purposeful history; the rights recognized were not rights pulled out of thin air but rather stem from Natural Law and the concept that certain rights are endowed by a Creator (inherent in our very humanity);

Our Founders were not talking about hunting when they demanded that the Second Amendment be added to the Constitution; they were concerned about the freedom of the individual, and also the populace in general, to be armed in the face of a powerful and aggressive government – one that may send out a standing army in times of peace, one that may try to enact laws for gun and ammunition confiscation, and one that may eventually try to outright or effectively disarm its people;

The history of England, and indeed the history of many other nations, teaches us that when individuals are unable to defend themselves and their rights, they essentially have no rights. Rather, they have temporary permission from government to exercise rights until they somehow pose a serious threat to those in power.

James Madison once said: “If Men were angels, no government would be necessary.”  But what if it was the federal government that was not the angel?  The Second Amendment is the contingency plan in such a case;

James Madison also wrote (in Federalist No. 28): “If the representatives of the People betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government”;

In addition to the natural right to defend one’s life and property, as well as those of family members and perhaps fellow citizens who are vulnerable,  there are other components of self-defense and self-protection other than the actual confrontation and neutralization of a violent intruder or attacker, that the people recognize – one being DETERRENCE;

Gun-Free Zones, homes without effective firearms, and individuals of sound mind disenfranchised in their right to have and bear arms serve as attractive targets for criminals and evil-intentioned, mentally-disturbed individuals;

The State of North Carolina, under the Tenth Amendment and according to compact principles, reserves the right to determine when the federal government has over-stepped its constitutional bounds with respect to legislation on gun control;

The State of North Carolina will NOT comply with any federal gun control law or policy that hinders or burdens its citizens in their free exercise of the natural right of self-defense and self-protection recognized by the Second Amendment;

In furtherance of its DUTY to prevent unconstitutional or abusive acts of the federal government on its citizens, and in furtherance of its DUTY to prevent the God-given and Natural rights of its People, the State of North Carolina will interpose using whatever means necessary to ensure that such gun control laws or policies (including judicial opinions), or any laws, policies, or court opinions for that matter in violation of the Constitution generally or the Bill of Rights specifically are not enforced in the State.

** ** ** ** ** ** ** ** ** ** ** ** **

I posted a closely-related article, with commentary on the Second Amendment, prior to this one –  https://forloveofgodandcountry.com/2018/04/01/keep-the-second-amendment-secure-in-north-carolina-2/

- 2018 (gray shirt, March 24, 2018) - BEST

Keep the Second Amendment Secure in North Carolina

SECOND AMENDMENT - Firearm on Constitution

by Diane Rufino, March 27, 2018

My appreciation of the Second Amendment and gratitude for the wisdom and insistence of our Founders and for the States who insisted that it was necessary to be included in our Constitution (or else they would refuse to join the Union) was solidified in an incident that happened to me many years ago.

When I was 26 years old, I was living on my own in my first apartment – a tiny, one-bedroom place in Plainsboro, New Jersey. My first job out of grad school didn’t pay very much so I had to work a second job to support myself.  One night, after getting home from my waitressing job and taking a shower, I had trouble sleeping. So I put on the TV and found a good Clint Eastwood movie to watch – Any Which Way But Loose. It was a very small apartment and it turns out that the TV stand I had was very close to the apartment door, which was locked. It was about 1:00 – 1:30 in the morning – maybe later. As I was watching the movie, I happened to notice that the door knob was moving. Someone was outside my door, trying to get in. The knob was moving harder and harder, and I was scared like I had never been scared before in my life. (I had learned soon after I moved into the apartment complex that a young woman tenant had been murdered just before I moved in).  As I was shaking uncontrollably and trying to find the number for the Plainsboro Police (the days before cell phones and 911), I heard a man speak through the crack in the door “Open the door; you’re the girl with the silver Fiero, right?”  In fact, I had a silver 1983 Pontiac Fiero. The man trying to break in specifically targeted MY apartment. He was looking for ME. I didn’t know who he was and I couldn’t imagine who he was. I was new to the area and had very few friends and acquaintances. I called the police, using the only phone I had, which was next to the kitchen. It was not in a direct line of view to the door. The police dispatcher told me to stay on the line and that a police car would be there shortly.  I picked up the only knife I had in my apartment – a cheap steak knife. All I kept saying was “Please hurry. Please hurry. I’m so scared.”

I was absolutely helpless. I am 4 foot 9 inches tall and weighed less than 100 pounds at the time. I had a cheap knife in my hand, not even sure if I was capable of overcoming my state of fear to defend myself.

The police arrived before the door was pried open and I collapsed in tears, grateful that someone was there to protect me. The potential intruder told the police that he had been drinking and in his drunken state, he must have gotten confused because he thought he was trying to get into his own apartment.  I told the police that it wasn’t the truth because he had called out “You’re the girl with the silver Fiero.”  Nevertheless, the police believed his story and they let him go. They admonished him for scaring me and told him “don’t do it again.” Turns out that he lived in the building next to my building; a grassy courtyard separated our buildings. He lived on the second floor.  My apartment was a ground-floor apartment. So, it was hard to imagine the police would have believed his story about being confused and thinking it was his apartment.

I never stayed in the apartment again after that. I stayed with a friend for about two weeks and then moved into a new place, in another town.

I often thought what I would have needed to defend myself that night, especially if he rushed in and rushed towards me. Again, I’m short and barely able to keep my composure when nervous. I am prone to anxiety attacks. Would a simple handgun holding 5 bullets been sufficient for me to stop him?  I can’t say for sure. Maybe, but maybe not. I imagine I would not have been composed enough to aim well so maybe not. I would have needed something that didn’t require accuracy. What if there were two men?  Well then, a simple handgun would not have been enough.

What if Plainsboro law required individuals to have guns dissembled in the home?

Self-protection is not a one-size-fits-all model. The Right to Self-Defense doesn’t require a one-size-fits all scheme. The Right to Self-Defense has no limits or conditions; it is merely the RIGHT to defend oneself (against others who intend harm), allowing each individual to decide for himself or herself what is needed to ensure that. The government once re-interpreted its “Necessary and Proper” Clause to mean “anything convenient” to help the government carry out its functions. It reasoned, in direct conflict with the very words of Article I, Section 8, that the government needs to determine, and to do, whatever helps it (“whatever is convenient”) to carry out its functions. We the People interpret the Second Amendment in the same broad sense –  “anything convenient” to carry into the effect the right to defend and protect oneself.

The Right to Life is recognized ever so profoundly in perhaps the most important, most significant document in the world – our American Declaration of Independence. “We hold these truths to be self-evident, that All Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The Right to Life is not the government’s to give, or define, to limit, or to take credit for, and the natural Rights to protect it, secure it, and preserve it (known as the Right of Self-Defense and the Right of Self-Preservation) are inherently equal to that Right to Life.

The day the government denies we the people that right to protect, secure, and preserve our lives is the day that we are no longer free but merely subjects, inferior in our status to the government’s right and power to preserve itself. The day that we lose our Right to Have and Bear Arms is the day that we surrender all other rights. The Right embodied in the Second Amendment is the one right that secures all others.

The Declaration goes on to tell us what we the people have the inherent and natural right to expect from government: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,….”  And then it instructs what we also have the inherent and natural right to do when government fails to secure our rights and instead, threatens them: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”

Powerful and progressive actors (individuals and organizations) in this country, including Michael Bloomberg, are forcing an evil agenda on the people of this country and on the government which has, as its ultimate goal, the destruction of the rights we are entitled to and the ones we need to continue being a free people. These actors are forcing us to re-evaluate whether our government is becoming destructive of the ends for which it was created and the result is not going to be pretty.  A government (King George III of England) tried that over 200 years ago at Lexington and Concord, MA, and then at Williamsburg, VA, and the result was a revolution for the right to govern as the colonies saw fit, with the goal to never surrender their rights and liberties again. Today’s youth don’t understand this. Today’s youth don’t even know about this.  Today’s progressives don’t care about this.

There are a lot of people out there, including those who marched on DC, who are advocating for the weakening and even the repeal of the Second Amendment. But that cannot happen. Let’s be absolutely clear on that. The Constitution – and thus the legal status – of the Second Amendment is crystal clear on the matter:  The Second Amendment confers the RIGHT to an individual to have and bear arms for SELF-DEFENSE (McDonald v. Chicago, 2010, and Heller v. District of Columbia, 2008).  That right SHALL NOT BE INFRINGED.  Furthermore, the ONLY way the Second Amendment can be limited or abolished is through the Article V amendment process.  And there are some legal experts who believe that the amendments comprising the Bill of Rights can never be amended. Amendments, they explain, can be added (for example to include other rights), but the original ten amendments are to remain in force as they are because they recognize what, at the very least, our inherent liberty rights include. Because they are rights that are inalienable to us (Life, Liberty, and the Pursuit of Happiness), we are always entitled to them.

What does it mean to have the natural right of self-defense?  It means we can be expected to protect ourselves, in any way that the situation requires. It means that if we are in fear for our lives or serious harm, we have the right to eliminate that threat. Individuals have the right to exercise their rights but only when they don’t seriously impact those of other individuals. I have the right to free speech. But my right doesn’t include the right to shut yours down. I have the right to own a gun, but I don’t have the right to take the life of an innocent person with it. The inherent, or natural, right of self-defense and self-preservation is recognized, and has been recognized historically, in criminal law. A person who shoots and kills an intruder carrying a gun commits homicide which is a serious crime. But under the law, it is considered “justifiable” and therefore not punishable. A woman who stabs and kills a man who is attacking her and intending to rape her commits homicide. But under the law, it is considered “justifiable” and therefore not punishable. “Justifiable” is a term which means that the killing was “justified,” and one of the most common reasons is self-defense.

We don’t need the Second Amendment to have the right to defend ourselves, including with firearms. The Second Amendment confers no such right. Rather, it recognizes the right. If bad guys can threaten lives with guns (which they will ALWAYS be able to do; which they have ALWAYS been able to do), innocent victims have the right to have access to guns to counter that threat. If we continue down the road to governments like the Third Reich, Stalinist Russia, Mao Zedong’s communist China, Pol Pot’s Cambodia, Hugo Chavez’ Venezuela, and even British King James II, to use the full force of government to ignore individual rights and eliminate political opposition, we know that that its operatives and its armies will threaten American citizens with guns and all kinds of advanced weapons. We have the right to have access to guns, and also advanced weapons, to counter that threat.  Like kind for like kind. That is what is meant by being free and that is what is meant by having a meaningful right to self-defense.

We see a dramatic rise in violence by bad people and we see a dramatic rise in retaliatory violence by persons who are emotionally and mentally unstable. We are seeing something play out that people throughout history have also seen – bad people and evil-intentioned people will ALWAYS find ways to get weapons (or they will make them, such as Timothy McVeigh and the UnaBomber Ted Kaczynski, or they will weaponize other instrumentalities, such as cars, trucks, planes).  The rise in abnormal behavior, in criminal tendencies, in retaliatory mass shootings, in mental instability is something we should be focusing on. It’s the behavior – the diseased mind and the black heart – that seeks out the guns for violence. The guns don’t force themselves on those individuals. We should be focusing on what in our society is giving rise to this behavior – this troubling trend. Specifically, we should be looking at policies that government has forced on our communities through its seeming desire to change our social fabric and our social norms, to force new values on us and to force us to repress old conventional ones. Government – our public schools and our colleges and universities, our public offices, our public hospitals, the main-stream media (undoubtedly, an arm of the government’s establishment) – has been pushing a new agenda now for many years and that is “Diversity.”  We are indoctrinated to believe that diversity is the most important factor in college admissions, in the make-up of a student body and in the classroom, in the workforce, in our police forces, and in government; we are indoctrinated to belief that what we look like – what the color of our skin is, what country we came from, what gender we are, and what gender we want to be – is far more important than the competency and skills we bring to that school or that office. The government disregards the entire sad history of this country from the era when slavery was abolished until Civil Rights legislation was passed when we DID focus only on what a person looked like. Government doesn’t learn from history but rather repeats it. Government, through its willing and reckless refusal to enforce the most important of laws, our immigration laws and its willful blind eye to all the crime and lawlessness that has resulted, indoctrinates us, tacitly, that laws are not really to be taken too seriously. Government, contradicting what our parents used to teach us, undermines the importance of the rule of law and undermines the notion of equality under the law.

Morality is a thing of the past and so is religious observance in our daily lives. The family is no longer the bedrock and the pillar of society, and we see that in the laws of progressive states and in the court decisions in all other areas. We are intolerant to focus on the “nuclear family.” We are intolerant to refer to parents in gender terms. We are discriminatory if we dare accept the psychologists’ and the social scientists’ data that the proper emotional and psychological development of children depend on there being both a female and a male parent in the home and in their raising. We are discriminatory if we dare accept the well-established and reproducible data that children end up living in poverty, with a lack of education, and with psychological or domestic problems when they are raised in a single parent home. We are discriminatory if we dare accept the well-established and reproducible data that those who commit violence, those who commit mass murder, and those who embrace a criminal lifestyle are those raised without a father or without an effective father figure in their lives  We who lived in societies that respected and recognized traditional family values (and legislated to that effect) enjoyed its benefits. Societies were safer and children progressed through their childhood and teen years without incident and went on to become healthy and contributing members, having families of their own and raising their children successfully. We who recognize that reality and who recognize the robust data on the social benefits of a traditional family and the social problems created by the lack of such a family are antiquated and a threat to the progress of society in this country. Most families are no longer intact or have been re-established through second marriages, etc.  Children are psychological playthings – mere social experiments whose well-being comes at the expense of the desires or the recklessness of their parents or is merely considered as less important. Those were not the values of my parent’s day.

So, we don’t need the Second Amendment to exercise our rights of self-defense and self-protection. What we would like is our government to say “Government is prohibited from defining limits to the Second Amendment; the Constitution is clear on that.” We need our government to be of the kind that the Declaration of Independence promises us –  one that has as its primary purpose the security of our individual rights to Life, Liberty, and the Pursuit of Happiness. And one way to demonstrate that it is such a government is to respect the Second Amendment and not push to have it limited or as former Supreme Court justice John Paul Stevens urged, to have it abolished. Should that, in fact happen, and especially if it happens through legislation by the US Congress or by pronouncements from the bench by activist judges, then we have an illegitimate government and the provision in the Declaration which states “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…” is triggered and the people have the natural right to separate from it.

I have proposed a State Sovereignty Resolution to my legislators in the North Carolina General Assembly. I feel very strongly that the General Assembly, our legislative body (“The People’s Body”), should make it clear that the people’s right to have and bear arms is safe and secure in our state.

The text of my proposed State Sovereignty Resolution is provided below:

NORTH CAROLINA STATE SOVEREIGNTY RESOLUTION

A Bill Announcing the Intention to Nullify any and all Unconstitutional federal Gun Control Bills that the State of North Carolina and its People believe to be an Infringement of their Natural Rights of Self-Defense and Self-Protection as Recognized by the Second Amendment

The State of North Carolina asserts the following

A warm attachment to the Union of the States, to which it had pledged its loyalty in accordance with the terms of the Constitution, the compact that created it, and to that end, it has a duty to watch over and oppose every infraction of those principles which constitute the basis of that Union, because only a faithful observance of them can secure its existence and the public happiness;

Its recognition and respect for the lawful and constitutional process for altering the terms and meaning of the Constitution, including the amendments contained in the Bill of Rights, which are the two procedures listed in Article V (the Amendment Process);

The Second Amendment recognizes that a well-regulated Militia, being necessary to the security of a free State, shall not be infringed;

The Second Amendment also recognizes that the right of the people to keep and bear Arms, shall not be infringed;

The Second Amendment recognizes the natural right of Self-Defense and Self-Protection, both on behalf of the State (“a free State,” by the way) and of the individual;

The Second Amendment doesn’t grant these rights but rather, it protects them, without condition or limitation, from the reaches of the federal government, especially the US Congress and its law-making power;

The phrase “SHALL NOT BE INFRINGED” is clear and instructional on its face;

To affirm the point above further and to support it greater, the States specifically included a Preamble to explain the reason for the ten amendments to the new Constitution (amendments that were demanded by them and without them would have jeopardized and prevented the ratification of that document. The Preamble reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution”;

The Preamble to the Bill of Rights makes abundantly clear that the Constitution established a federal government of limited powers, and that in those limited objects of government, the federal government is limited even further by the ten amendments added (ratified by 3/4 of the States) on Dec. 15, 1791;

Just as the Supremacy Clause asserts the supremacy of the federal government with respect to the powers delegated to it, which are “few and defined” (Federalist No. 45, written by the same man, James Madison, who authored the Constitution), the Tenth Amendment and the Preamble to the Bill of Rights assert the supremacy of the States with respect to the powers reserved to them;

That one of the reserved powers of the State is the responsibility, the duty, to prevent unconstitutional federal laws, policies, executive actions, and court opinions from infringing on the rights of its people;

The Second Amendment has a very purposeful history; the rights recognized were not rights pulled out of thin air but rather stem from Natural Law and the concept that certain rights are endowed by a Creator (inherent in our very humanity);

Our Founders were not talking about hunting when they demanded that the Second Amendment be added to the Constitution; they were concerned about the freedom of the individual, and also the populace in general, to be armed in the face of a powerful and aggressive government – one that may send out a standing army in times of peace, one that may try to enact laws for gun and ammunition confiscation, and one that may eventually try to outright or effectively disarm its people;

The history of England, and indeed the history of many other nations, teaches us that when individuals are unable to defend themselves and their rights, they essentially have no rights. Rather, they have temporary permission from government to exercise rights until they somehow pose a serious threat to those in power.

James Madison once said: “If Men were angels, no government would be necessary.”  But what if it was the federal government that was not the angel?  The Second Amendment is the contingency plan in such a case;

James Madison also wrote (in Federalist No. 28): “If the representatives of the People betray their constituents, there is no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government”;

In addition to the natural right to defend one’s life and property, as well as those of family members and perhaps fellow citizens who are vulnerable,  there are other components of self-defense and self-protection other than the actual confrontation and neutralization of a violent intruder or attacker, that the people recognize – one being DETERRENCE;

Gun-Free Zones, homes without effective firearms, and individuals of sound mind disenfranchised in their right to have and bear arms serve as attractive targets for criminals and evil-intentioned, mentally-disturbed individuals;

The State of North Carolina, under the Tenth Amendment and according to compact principles, reserves the right to determine when the federal government has over-stepped its constitutional bounds with respect to legislation on gun control;

The State of North Carolina will NOT comply with any federal gun control law or policy that hinders or burdens its citizens in their free exercise of the natural right of self-defense and self-protection recognized by the Second Amendment;

In furtherance of its DUTY to prevent unconstitutional or abusive acts of the federal government on its citizens, and in furtherance of its DUTY to prevent the God-given and Natural rights of its People, the State of North Carolina will interpose using whatever means necessary to ensure that such gun control laws or policies (including judicial opinions), or any laws, policies, or court opinions for that matter in violation of the Constitution generally or the Bill of Rights specifically are not enforced in the State.

** ** ** ** ** ** ** ** ** ** ** ** **

 

Notice that the Resolution only recognizes a rightful limitation of the right and ability to purchase and possess guns when it comes to persons who have a history of violence or mental instability. It is only in these two instances that individuals are unable to appreciate or respect the rights of others and therefore have been deemed to have forfeited their rights under the Second Amendment.

The Resolution that I have written (above) can easily be modified for a Sovereignty Bill or a Nullification Bill. If it is modified for such a bill, it should include the various types of interposition (action) that North Carolina would be willing to pursue (and will pursue) in order to shield its citizens from the effect of unconstitutional federal gun control laws. In other words, the bill should list the various types of action that the state and its officials will carry out in order to prevent such gun laws from being enforced on the citizens – including such things as arresting and jailing federal officers who attempt to come into the state to enforce the laws, not recognizing federal court opinions that erode or limit the Second Amendment, removing and disbarring judges from the bench who attempt to punish NC citizens under the federal law, empowering Sheriffs to not enforce the law or to share information with the federal government, refusal to allow its state officials to cooperate in the enforcement of the law, and challenging the law in court.

If you agree with the sentiment expressed in this article and if you agree with the points articulated in the Resolution, please share with others. If you agree that North Carolina should adopt this, or a similar, resolution affirming the Second Amendment, please contact your representative and send them a copy of what I have written. If you are not from North Carolina but would like your state legislature to adopt such a resolution, please contact your representative(s) and share this article – or at least the resolution.

All tyranny needs is for good people to do nothing.  The powerful progressive movement in our country will continue to misuse and manipulate elements of our government – the liberal, progressive, activist courts and the politically-deranged members of Congress – to strip our rights away. Our rights are what allow us to stand up for the truth and stand up against our aggressive government.  We cannot remain silent and we must not allow their agenda to continue to move forward. The Second Amendment – the right to have and bear guns for self-defense is where we must draw the line, as our founding generation did. That is what Patrick Henry was talking about when he exclaimed: “Give Me Liberty or Give Me Death!”  Without the right of self-defense and the right to use firearms for self-defense, we effectively have no secure rights. Without the Second Amendment, we have no effective way to protect the others.

Saul Alinsky, building on Lenin’s original plan for world conquest by communism, wrote a book entitled “Rules for Radicals” in which he outlined a plan to turn useless idiots into useful idiots for political purposes. The ultimate purpose, of course, is the creation of a large, concentrated, socialist government with the power to control the lives of its citizens. I never understood the attraction of a socialist state, especially in this country, and to so many people.  In a socialist state, individuals lose their rights, their freedoms, and their choices to the dictates of government. Alinsky, like Lenin, examined the various levels of control that a government would need in order to establish an effective socialist state and those levels are, in order:

(1)  Healthcare – A government that controls the people’s healthcare controls the people themselves

(2)  Poverty – people in poverty are easiest to control; hence, it is most beneficial for government to pursue policies that increase the level of poverty or keep individuals and their offspring in poverty

(3)  Debt – government will increase the national debt to unsustainable levels because then it can continue to tax heavily (and to increase taxation; to burden property). Taxation produces more poverty or at least, prevents many from improving their financial situation

(4)  Gun Control – disarming the people allows the government to establish a police state, if need be

(5)  Welfare – welfare allows government to take control of every aspect of a recipient’s life – food, housing, choices, even decisions to marry or to pursue education. Government will never get rid of welfare programs if its goal is socialism

(6)  Education – government needs to take control of what its youth learns…  what they read, what they listen to, and what things mean; it needs to use the education system as a means to indoctrinate its citizens.

(7)  Religion – a belief in God needs to be removed from schools, government, the marketplace, and the public square. A socialist government substitutes itself for the role of God.  A moral, religious people will always question the legitimate role of government, and so, it must minimize this faction.

(8)  Class Warfare – government needs to divide its people into poor and wealthy — the “have’s” and the “have-not’s.”  It also needs to divide people along racial lines – characterizing one group as “victims” and the other as “oppressors” (or as “beneficiaries”). This way it is easier to demonize the wealthy, the empowered, the benefitted classes and therefore, to take from them — their money (through taxation – to benefit the poor), and their positions (through “diversity”-enrichment programs). It is easier to re-engineer society by creating division, hatred, and distrust.

Looking at this list, government has achieved every one of these levels of control – EXCEPT gun control. Is it any wonder that the left is pursuing it at such a rabid level lately?  Is it any wonder that it uses every tragedy to attack the Second Amendment?

So again, if you agree with the sentiment expressed in this article and if you agree with the points articulated in the Resolution, please share with others. And if you live in North Carolina, please contact your state rep and send him a copy.

There was a time when North Carolina was the most liberty-minded of all the colonies and all the states. She has a profound and impressive history. My hope is that her legacy will live on with her respect for its citizens’ Second Amendment rights.

[NOTE:  I wanted to include this disclaimer, after the fact. Doing research for my April 5 article, I learned that the 8 Levels of Government Control to Establish a Social State is not included in Saul Alinsky’s book “Rules for Radicals,” and in fact, is not attributable to him at all. Some, however, have attributed some of the levels to Richard Cloward and Francis Fox Piven (“The Cloward-Piven Strategy”).  In my article: “Government Control of the People – The Progressive Scheme:  Making Useful Idiots Out of Useless Idiots,” I discuss Saul Alinsky and his book, and its potential for transforming the character of our country, but I also address this misinformation about the 8 levels.  The article is posted here:   https://forloveofgodandcountry.com/2018/04/05/government-control-of-the-people-the-progressive-model-making-useful-idiots-out-of-useless-idiots/ ]

- 2018 (gray shirt, March 24, 2018) - BEST

Making Sense of the Meaning and Intent of the Second Amendment: It Isn’t Hard, Folks!

2nd amendment - there are no rights if you can't defend them

by Diane Rufino, May 24, 2017

“No free man shall be debarred (denied) the use of arms.” –  as proposed by Thomas Jefferson for Virginia’s Bill of Rights, 1776

The Federal Farmer (anti-Federalist author) in 1788: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”

Patrick Henry to the Virginia Convention to Ratify the US Constitution, in June 1788: “The great object is that every man be armed.”

At the same time it ratified the US Constitution in 1788, the New Hampshire Ratifying Convention proposed this amendment for the Bill of Rights: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

The Federal Gazette, dated June 18, 1789, described James Madison’s proposal for a Bill of Rights: “The people are confirmed in their right to keep and bear their private arms.”

“We have found no historical evidence that the Second Amendment applies only to members of a select militia while on active duty. All the evidence indicates that the amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”   —  The Court of Appeals for the 5th Circuit (2001)

INTRODUCTION –

The Second Amendment: “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.”

For most of our nation’s history, the Supreme Court has essentially managed to avoid ruling on the meaning and intent of the Second Amendment and that worked out just fine. And that’s probably because for about 150 years, it apparently was universally understood that the amendment protected an individual right to arms rather than a right only when organized in a militia. It wasn’t until the 20th century that a legal debate began in earnest over the characterization of the right recognized in the Second Amendment.

Is the right to arms an individual right or a collective right?  Indeed, in the 20th century, federal courts have seemed confused on this question. Some embrace the historical model, which holds that the amendment recognizes the right of people, as individuals, to bear arms.  And others embrace the more radical model, the “collective rights” model, which holds that individuals have the right to arms but only when they are members of a militia.

The “collective rights” model was embraced in 1939 in a case called United States v. Miller.  The case arose after two men, Jack Miller and Frank Layton, were arrested for transporting a double-barrel 12-gauge shotgun across state lines and in interstate commerce. They were charged with violating the National Firearms Act (“NFA”).  Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms and therefore it was unconstitutional as it applied to them. The federal district court agreed and dismissed the case. The government appealed and it went to the Supreme Court. The issue at the heart of the case was whether the Second Amendment protects an individual’s right to keep and bear arms. The Supreme Court concluded that it does not. It reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the functioning or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

Although the right to arms became an increasingly heated topic as the 20th century went on, the Supreme Court refused to hear cases to re-address the amendment.  And so, the Miller decision defined the position of the federal judiciary from 1939 for almost 70 years.  The Second Amendment did not recognize an individual’s right to have and bear arms for self-defense – only the defense of a State. But then in 2008 and then in 2010, the Supreme Court, with the late great Antonin Scalia on the bench, agreed to hear two cases, each addressing the same issue and each directly asking the Court to re-address the meaning and intent of the Second Amendment.  The 2008 case, District of Columbia v. Heller, addressed a federal gun control law, and the 2009 case, McDonald v. Chicago, addressed a state gun control law. [The first was a direct challenge to the Second Amendment and the second was a challenge under the incorporation clause of the Fourteenth Amendment].

In Heller, at issue was a gun ban in the District of Columbia (hence, it was a federal gun law) which regulated firearms in several ways: (1)  It made it illegal to carry an unregistered firearm; (2) It prohibited the registration of handguns; (3)  It required owners of lawfully-registered firearms to keep them unloaded and disassembled, even in the home, or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.  Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied, and so he brought suit to challenge the gun ban as violative of the Second Amendment.

The Supreme Court agreed with Officer Heller (5-4 majority, of course). It held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  Therefore, the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism was inconsistent with the intent of the Second Amendment. Justice Antonin Scalia delivered the opinion.  The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

The piece of legislation addressed in the McDonald case was Chicago’s gun registration law, which: (1) Prohibited the registration of handguns, thus effecting a broad handgun ban; (2) Requires that guns be registered prior to their acquisition by Chicago residents; (3) Mandated that guns be re-registered annually, with another payment of the fee; and (4) Rendered any gun permanently non-registrable if its registration lapses. 76-year-old Chicago resident Otis McDonald, a retired maintenance engineer, had lived in the Morgan Park neighborhood since buying a house there in 1971. He complained about the decline of his neighborhood, describing it as being taken over by gangs and drug dealers. His home and garage had been broken into five times. An experienced hunter, McDonald legally owned shotguns, but believed them too uncontrollable in the event of a robbery, and so he wanted to purchase a handgun for personal home defense. Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 when a city-wide handgun ban was passed, he was unable to legally own a handgun. So, he and some of his neighbors challenged the Chicago gun registration law as violative of the Second Amendment, as applied to the States through the Fourteenth Amendment. He didn’t believe that the Second Amendment was meant to leave him as a sitting duck – a potential victim – in his crime-ridden neighborhood.

The Supreme Court held that the Fourteenth Amendment makes the Second Amendment’ right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right, and so, the Second Amendment’s protections and prohibitions apply to the States.

As you read the body of this article, consider what liberal justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor argued in their dissent. They wrote that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.  Keep that in mind.

Heller and McDonald were decided after a deep look into the historical roots of the Second Amendment, something that the Court should have done in the Miller case. The current understanding is that the Second Amendment recognizes and protects an individual’s right to arms for self-defense and equally recognizes the right to have and bear arms for the purpose of a state militia.

The opinion makes sense.  According to the Declaration of Independence, and natural law, we have the right to life and liberty. These rights are inherent with our humanity. They are inalienable. We never surrender them. Therefore, by extension (by corollary), we must have the right to defend them. In other words, the right to life, and liberty (and Property too) also implies the right to defend them. Otherwise, the rights are meaningless; there are merely parchment pronunciations.

The desire to live and survive is innate; we reflexively act to protect our lives and to thrive. And when we can’t, we feel violated. Just ask anyone who has been the victim of a violent crime, of a robbery, an assault, a break-in.  Ask someone who has the experience of a stranger breaking into their house in the middle of the night. I had that experience. And I have a gun today because I never want to feel helpless and vulnerable and the victim of predation again.

From a simple reading of the Bill of Rights, one notices that the First Amendment and the other amendments as well, address individual rights. If the Bill of Rights identifies individual rights – as did the Magna Carta and the English Bill of Rights – shouldn’t one sense pressure to view the Second Amendment similarly?

Historically, the “individual right” view is the best proven one, and so the Supreme Court rightly decided the Heller and McDonald cases.  But what is that history that so grounds our Second Amendment and so secures its meaning as an individual right?

The DVD “In Search of the Second Amendment” explains this history very clearly.

THE HISTORY of the SECOND AMENDMENT

[This section is lifted, in part, from the DVD “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006)]

The 1930’s through the 1970’s was a time period when Americans were embracing their gun rights, but lawyers weren’t paying much attention to the Second Amendment – one way or another (that is, on either side of its interpretation).  There wasn’t much thought given to it. But as the years went on, there was growing evidence for the “individual right” view. Law reviews were publishing articles on the topic and books on the Constitution were taking notice of this meaning. Momentum was slowly building for a show-down in the Supreme Court to address this building consensus.

One of the leading Constitutional Law treatises of the later 20th century, American Constitutional Law, was written by Laurence Tribe, professor of Constitutional Law at Harvard Law School. His first edition was written in 1978. Attorney Leonard Levy wrote a subsequent book, Essays on the Making of the Constitution, in which he attacked Tribe’s textbook for failing to acknowledge the growing the evidence of the “individual right” view of the right to have a bear arms. Tribe immediately published a second edition accepting this evidence.

Why this growing trend?  And what does it mean for the Miller decision?  Did the Court at the time not have the evidence?  Before coming to the conclusion that the Second Amendment conferred only a collective right (although it appears they only alluded to this viewpoint without coming right out with a bright line rule of construction), didn’t they bother to go back and research the amendment’s history?

What got the ball rolling towards the “individual right” point of view?  One article appears to be responsible. The recent boom in Second Amendment legal scholarship that has led to most constitutional scholars to accept the view that the amendment protects an individual’s right to have and bear arms began with an article by Don Kates, published in the Michigan Law Review. That article was titled “Handgun Prohibition and the Original Meaning of the Second Amendment.’ [http://www.constitution.org/2ll/2ndschol/57mich.pdf].

Top legal scholars, many of which are liberal, such as Sandy Levinson (of the University of Texas, writing in the Yale Law Journal), Randy Barnett (Boston University School of Law), Bill Van Alstyne (Duke University), and Eugene (Professor at the UCLA School of Law) have made it clear that their research has led them to conclude that the Second Amendment protects an individual right to have arms.

The history behind the Second Amendment goes back well before the colonies were even settled. It goes back to the very history of the fore-fathers and founders of our country. It goes back to the history of England, the country that gave us so much of our common law, gave us our Bill of Rights, and gave us much of the foundation upon which we built our Declaration, our Constitution, and our system of government.

In medieval England, there was no royal army. There wasn’t enough money or control to have such a formal army. Instead, the King would have to count on his subjects to fight for him – to fight for the kingdom. And so, by law, the King established a citizen militia.  By law – the Militia laws – every male subject, beginning at a certain age, was required to own guns, have ammunition, be trained in their use, and show up for regular training sessions. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness.  Henry VIII lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!”

In 1688, a medieval “duty” to have and bear arms became an “indubitable right.”  How did this happen?   Dr. Joyce Malcolm, Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law and fellow of the Royal Historical Society, is an expert on this topic. She has been called “the leading historian on the history of English gun rights and English gun control.” Malcolm explains that gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. Eventually, in 1642, civil war broke out and members of Parliament, led by Oliver Cromwell, brought charges against Charles. He was captured, tried for treason, and beheaded. His sons, the future King Charles II and King James II had fled to France at the time.

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did.  But what did Charles come home to?  He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown.  And at first, the Act was actively enforced.  In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !!

Charles II died and having produced no heirs, he was succeeded by his brother James. King James II would use the Game Act to try to disarm all those subjects who he deemed were not well-enough off. In other words, he tried to limit gun ownership to only those of a certain class of subjects. He sent out mass orders to disarm the citizenry.  According to the record, Dr. Malcolm explains, the orders were apparently not carried out.  But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

And so, finally in 1688, the English people had had enough. They, together with a union of Parliamentarians, invited William and Mary, of Orange to take over the throne and depose King James II. Mary was the daughter of the king. The people promised they would oust James and offer no resistance to William and Mary if they agreed to sign a Bill of Rights acknowledging the rights of the people and promised to be held to that document. William and Mary agreed. They sailed from Orange and were met with the support of the citizenry, in what would be known as the “Bloodless Revolution” (or Glorious Revolution). James was forced to flee.  A new Parliament was formed (one not loyal to James, who was still alive) and this Parliament decided that a Bill of Rights was necessary to re-affirm all the rights that had been imperiled by James.  In order to tie the new King and Queen to an obligation to abide by these rights, the same statue that elevated William and Mary to the throne also contained those rights – The Charter of Rights – The Charter of Ancient and Indubitable Rights.”  In fact, this Bill of Rights of 1689 was referred to as “The new Magna Carta.”  The statue created a contractual obligation, one that tied the right of the King and Queen to rule to an obligation to respect the rights contained in the Charter.

One of those rights was the right of British subjects (“who are Protestants”) to have arms for their defense (self-defense) “suitable to their position and allowed by law.”

Arms seizure weighed heavily during the deliberations in Parliament as it drafted the Bill of Rights of 1689. So incensed that the people, in mass, had been targeted for arms confiscation under the Militia Act (and even some members of Parliament had been targeted), that the people and Parliament felt that the “duty” to have and bear arms was actually a “right.” The ability to arm oneself for self-defense was considered a right.

Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense.

Between 1603 and 1776, the rights of Englishmen became the rights of Americans.

When the first three ships arrived in the New World, in what would become the commonwealth of Virginia, the English settlers encountered hostile French and Dutch settlers as well as hostile Indians. Because of this hostile environment, the arms laws were even stricter than the English ones. English colonists were required to have arms on them at all times and they were required to be trained in their use. “Every male inhabitant shall carry a firearm wherever he goes.”  As the colonies were settled, one by one, they established their state militias. They drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. For example, in the colony of Virginia, in 1623, the Virginia General Assembly commanded, “that men go not to work in the ground without their arms; That no man go or send abroad without a sufficient partie well-armed.” In 1661, its Governor, William Berkeley stated, “All our freemen are bound to be trained every month in their particular counties.”  Virginia followed the British county lieutenant system; each county had a lieutenant, appointed as the county’s chief militia officer.

Yes, it was a “duty” to have and bear arms, in order to serve in the militia and help defend the colony, but apart from this duty, the colonists knew, as loyal British subjects (which they were and which they considered themselves), they also had the right to own them and to bear them.  For confirmation, they only needed to consult the second most popular book of the day (the first being the Bible), Blackstone’s treatise on the English common law, “Commentaries on the Laws of England” (1765).

In Blackstone’s “Commentaries on the Laws of England,” he addressed the right to arms:

“The fifth and last auxiliary right of the subject that I shall at the moment mention, is that of having arms for their defense – suitable to their condition and degree, and as such as are allowed by law. It is indeed a public allowance, of the natural right of resistance and self-preservation, when the sanctions of society and law are found insufficient to restrain violence of oppression.”

Blackstone says clearly that the right is not only for defense and for protection, but it is also to resist tyranny. The main purpose of the right to bear arms is to resist tyranny – in order that the people in the community, together and with their firearms, could overthrow a dictatorship in the last resort, should none of the other checks and balances work.

By the mid 1760’s, tensions were growing increasingly high particularly in the colonies, and in Boston in particular. It wasn’t long before the redcoats arrived, to live among the people of Boston and to make sure that they stayed “in line.” With the Redcoats came acts of criminality – rapes, robberies, murder.  The Boston Gazette published articles warning the colonists that they would soon be disarmed and should they “act out,” they would be taken to England and tried for treason. The colonists began to arm themselves – first to defend themselves against the criminal tendencies of the soldiers and also because it seemed likely that the tensions would escalate into conflict.  They cited the English Bill of Rights, the Militia Acts of the colonies, and even Blackstone’s “Commentaries” for their right to arm themselves.  “It is beyond sophistry to prove (meaning, it is clearly fallacious) that British subjects, to whom the privilege of necessary arms is expressly recognized by the [English] Bill of Rights, and who live in a province were the law requires them to be equipped with arms, are guilty of illegal acts in calling upon one another to be provided with them – as the law directs!”

Citing Blackstone, the colonists understood the reason they were vested with the right to bear arms: “It is a natural right, which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defense; and as a Blackstone observer, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”

Tensions soon escalated and a series of events followed.  Under the Intolerable Acts, the colonial legislature in Boston was abolished and King George III sent General Thomas Gage, a proven military commander at the time, there to serve as the Royal Governor. British spies tipped off General Gage that the colonists were stockpiling ammunition and artillery at nearby Concord. On the night of April 18, 1775, Gage sent a column of soldiers to Concord to destroy the supplies. Their trip led them through Lexington, where they encountered a small group of colonial militiamen. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and armed conflict between England and Massachusetts had begun. The revolution had begun. British forces drew first blood.

Despite the skirmish, the troops continued to Concord where they found the ammunition and where they also found several thousand angry townsfolk. The troops proceeded to burn the stockpile but from the vantage point of the townsfolk, it looked like they were attempting to burn down the town. And so, the townsfolk opened fire on the troops, forcing them to retreat. As they were retreating the 15 miles or so back to Boston, more and more members of the militia turned out to fire upon them. The British soldiers suffered over 300 casualties. Not only did they draw first blood, but they were defeated.

The fighting, however, was not to be contained in Massachusetts. In Williamsburg, Virginia, the colonists built an armory to store their gunpowder. Late during the night of April 20, 1775, royal governor Dunmore ordered British sailors to raid the armory and to take the gunpowder back aboard their ships. Dunmore allowed this even as statesmen such as Patrick Henry and William Henry Lee and other Virginians were already pushing to revive the state militia – to put into execution the militia law that was passed in the year 1738 – and to put them in the posture of defense (that is, to prepare them to defend the State against the British).

Just a month prior to that event, there was a general alarm that was spreading among the colonies – fueled, no doubt, by men like Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown. Clearly, as was done in Boston, England was intent on disarming them – just as King Charles II had done to his subjects approximately 100 years ago in the mother country. The King (George III) was not depriving them of their right of representation in Parliament this time (no taxation without representation); now he was stripping them of their right to bear arms for defense.

Only a handful of statesmen recognized what was happening and what its significance was. Patrick Henry was one. It was this general alarm, this general fear that England was coming to disarm the colonists, that prompted him, on the night of March 23 at St. John’s Church to propose three resolutions to raise, equip and prepare the militia for conflict.

His resolutions read simply:

Resolved, that a well-regulated militia composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us, for the purpose of our defense, any standing army of mercenary forces, always subversive of the quiet, and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.

That the establishment of such a militia is at this time peculiarly necessary, by the state of our laws for the protection and defence of the country some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity renders it too insecure in this time of danger and distress, to rely that opportunity will be given of renewing them in General Assembly or making any provision to secure our inestimable rights and liberties from those farther violations with which they are threatened.

Resolved therefore, that this colony be immediately put into a posture of defence: and that Patrick Henry, Richard Henry Lee, Robert Carter Nicholas, Benjamin Harrison, Lemuel Riddick, George Washington, Adam Stephen, Andrew Lewis, William Christian, Edmund Pendleton, Thomas Jefferson and Isaac Zane, Esquires, be a committee to prepare a plan for the embodying arming and disciplining such a number of men as may be sufficient for that purpose.

Perhaps the most rousing speech delivered in colonial America was by Patrick Henry and it was in support of these resolutions:  [As you read the speech, consider the circumstances to which he is speaking, and keeping in mind that men like Henry, Thomas Jefferson, Lee, Washington were keenly aware of the history of the people England, the continued struggle to assert their rights, to seek assurances, to have them violated, and only to have to try to re-assert them again, and again…..]

“The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

With the raid on the armory at Williamsburg, thus confirming Patrick Henry’s worst fears, the most powerful colony in the South (Virginia) was driven into an alliance with the most powerful colony in the North (Massachusetts).  The Boston Revolution soon became an American Revolution.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions between the colonies and Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

In 1775, the colonies called up the First Continental Congress to seek a peaceful resolution of the growing tensions. That Congress sent a series of petitions to the King to implore him to intercede on their behalf and recognize that their rights were being violated. He laughed at the petitions and likened the colonist to petulant little children who liked to throw fits. [Patrick Henry referenced this effort in his fiery speech at St. John’s: “We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne.”]  In 1776, the colonies called up the Second Continental Congress to manage the war effort against the British. General George Washington was put over the Continental Army and on July 4, 1776, the Congress signed the Declaration of Independence, declaring the colonies to be independent from Great Britain and articulating to a “candid world” the list of grievances against Great Britain which would support and justify its decision to separate.

Once the colonies proclaimed their independence, the strongest sign they could send to demonstrate that independence was to assume statehood and adopt state constitutions (the signs of sovereignty).  And so, each colony organized itself as a state and drafted and adopted a constitution. Most also adopted a Bill of Rights, in one form or another.

Different states provided different models for the right to bear arms. In 1776, George Mason went to work on the Virginia Declaration of Rights. He introduced the enumerated rights with a statement of nature’s law and a statement of the relationship of individuals and government, in general.  He wrote:

THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Then he addressed the right to arms:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty….

The Virginia Declaration of Rights was adopted June 12, 1776.

Thomas Jefferson submitted a draft of a Bill of Rights to be taken up at the upcoming convention (to draft a constitution for the first government of the “united” states, which as we know, was the Articles of Confederation). He wrote: “No free man shall be debarred the use of arms.”

The Pennsylvania Bill of Rights, adopted in September 1776, recognized a right to bear arms for both self-defense and in defense of the State.

1.  That all men are born equally free, and independent; and have certain, natural, inherent, and inalienable rights; amongst which are; the enjoying and defending of life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

XIII. That the people have a right to bear arms for the defense of themselves and the state.

In March 1780, Massachusetts adopted its Constitution and Bill of Rights, written by John Adams. It acknowledged a right to keep and bear arms, but added that it was for “the common good.”  The MA Bill of Rights read, in part:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

Part the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.

Art. I.  All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

XVII.  The people have a right to keep and to bear arms for the common defense.

Looking at these three Constitutions and Bills of Right, we can see that there were at least three (3) colonial models to address the right to arms.

Again, to compare and contrast them concisely, addressing them in the order they were adopted:

(1)  The Virginia model emphasizes the militia.  “A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state…”

(2)  The Pennsylvania model doesn’t mention militia; it emphases self-defense and defense of the State.  “The people have a right to bear arms for the defense of themselves and the State.”

(3)  The Massachusetts model took the Pennsylvania approach, but added a limitation in the form of the clause “for the common defense, and added the people also have a right to “keep” arms.  “The people have a right to keep and bear arms for the common defense.”

These models would become important when our new nation would look to draft a national Bill of Rights.

And that time came in 1787, when after certain leading state leaders – namely, James Madison and Alexander Hamilton – found the Articles of Confederation unworkable for the growing union and took the initiative to call up a new constitutional convention. The Convention was held in Philadelphia from May to September 1787 and rather than heed the constitutional call of the Convention to “amend” the Articles of Confederation, a brand new plan of government was pursued and a brand new Constitution was drafted. Although the delegates from 12 states labored through the hot summer months of that year, engaged in countless debates, and pursued and negotiated through many contentious issues, in the end the final draft, the US Constitution, was not acceptable to many of the delegates. Seven delegates to the Convention walked out and refused to sign it on the last day – September 20, including Virginia’s George Mason. These delegates either complained that it conferred too much power to the federal government (mainly, an unlimited power to tax and spent, and to raise an army) or that it lacked a Bill of Rights, or both. Many of those who did not sign it were anti-Federalists, those who feared a weakening of the States at the hands of the federal government.

Nevertheless, once the Constitution was signed, it went to the States, which, acting in their own conventions, would take up the issue of ratification. If they ratified the Constitution, they would become part of the Union of States and if they didn’t, they would not.  Delaware ratified first, by a unanimous vote. Then came Pennsylvania, New Jersey (unanimous vote), Georgia (unanimous vote), and Connecticut (overwhelmingly). In January 1788, Massachusetts called its convention. Samuel Adams, who, although he did not attend the Philadelphia Convention, attended the ratifying convention. Assessing the Constitution, he addressed the Convention:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceful citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States or of one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”

Samuel Adams is the strongest unsung hero of the Second Amendment. His writings on the right to have and bear arms goes back many years, even before his days in the Sons of Liberty.

Next, Maryland ratified the Constitution (overwhelmingly), then South Carolina, and finally New Hampshire (narrowly).  When New Hampshire ratified in June 1788, it became the ninth state to do so.  According to Article VII of the Constitution, the Constitution would go into effect when 9 states ratified. And so, the new Union was born.

But this new Union was still terribly fractured.  Virginia, New York, North Carolina, and Rhode Island still hadn’t decided. Actually, North Carolina met in Convention on August 2, 1788 but quickly rejected the Constitution (193-75). It agreed to meet again; it was waiting to see what the other States did regarding a Bill of Rights.

When New Hampshire ratified the Constitution on June 21, 1788, the Virginia Convention was actually still going on. It was contentious. Virginia, New York, and North Carolina were not expected to ratify, and the issue was over a Bill of Rights, which James Madison had argued in Philadelphia was not necessary. George Mason and Edmund Pendleton, two of the delegates from Virginia at the Philadelphia Convention who would not sign the Constitution, were now delegates at the Virginia Ratifying Convention and were committed to preventing the document from being ratified. These men, and many others, were already calling for another Constitutional Convention – particularly George Mason, and he had the potential power to move the plan forward. Mason and Pendleton were joined in sentiment at the Convention by Patrick Henry, who was highly skeptical of the Constitution and was confident it would lead to the consolidation of the states under the federal government.

At issue at the Virginia Ratifying Convention was essentially the concerns of the anti-Federalists, which was that the Constitution lacked a Bill of Rights (and that the government tended to be overly-ambitious and powerful).  The Virginia view, in general, was that a Bill of Rights is the very least that a government owes to its people. Mason argued for a Bill of Rights, and of course, any Bill of Rights worth its salt would have to include a right to bear arms. Patrick Henry told the Convention: “The great object is that every man be armed!”

In the end, a compromise was reached.  James Madison promised that if the Virginia delegation would ratify the Constitution in the Convention he would recommend to the first US Congress that a Bill of Rights be added, as a series of amendments. Madison was known to be a trustworthy man and so, the Constitution was narrowly ratified on June 25 (89-79). However, the Virginia delegation did not merely ratify; in anticipation of a national Bill of Rights, it also proposed and drafted a series of amendments for consideration.

“Resolved, that, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration”

When the Virginia delegation went back to write the amendments they would recommend, they looked to the Massachusetts and the Pennsylvania models, in addition to their own model.  The language that they came up with is as follows: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.”

The right to bear arms for defense of oneself and the State comes from the Pennsylvania model. The right to keep and bear arms comes from the Massachusetts model.  By removing express limitations (such as “for the common good” or other qualifiers that might be later construed to limit the right (“for defense of themselves and the State”), the first part of the proposed amendment construes the right to arms in its broadest terms. The second part of the proposed amendment comes from the Virginia model and addresses the militia. The Virginia delegation already believed it was expressed in its broadest terms.

So, the Second Amendment is actually two separate thoughts. The intentional, conscious effort was to express the right to arms in the broadest terms possible, to be understood in its broadest sense.

The New York Convention followed. It wrapped up on July 26, one month after the Virginia Convention. It was another contentious convention. As in Virginia, it was a battle between anti-Federalists and Federalists.  On the anti-Federalist side, the words of the Federal Farmer (possibly Richard Henry Lee) were invoked: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”  Daniel Webster, for the Federalists, answered: “Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be raised in the United States.”  [to paraphrase: Because of the fact that the people are armed and therefore superior to any troops raised by the United States, they can prevent the execution of any law they perceive not to be just and constitutional].

The debates in New York led to the most famous work on the meaning and intent of the Constitution – the Federalist Papers.  In fact, Madison addresses the militia (and a standing army) in Federalist No. 46.  He wrote: “The people will never have to worry about a standing army because of the state militias.”

The New York Convention very narrowly ratified the Constitution (30-27). But as Virginia did, it called for a Bill of Rights and provided several for consideration.  North Carolina went on to ratify, but only because a Bill of Rights has actually been adopted!  And then Rhode Island ratified after that.

The Constitution was adopted on June 12, 1788 when the ninth state, New Hampshire ratified it. Fall 1788 saw the first national elections and as expected, James Madison was elected to the House of Representatives. In the months after the election and before taking his seat in Congress, which was in New York City at the time), Madison sat at his home in Montpelier and drafted a Bill of Rights. He drew from the proposed amendments that were submitted by the states.  He planned to bring them with him to the first session of Congress and present them, thus making good on his promise. He drafted twelve amendments.

On June 8, 1789, Madison stood up in the House of Representatives and proposed what would become the federal Bill of Rights. His proposed Second Amendment read: “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.”

The first Congress amended Madison’s proposal; it removed the language concerning the conscientious-objector.  Then a committee was formed – a drafting committee – consisting of Madison himself and Roger Sherman, an anti-Federalist, to provide the final draft. The final draft of the Second Amendment was a pared-down version which read: “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.”

In the debates in the Senate on the proposed Bill of Rights, a motion was made to insert into the Second Amendment the words “for the common defense” next to the words “bear arms.”  It was rejected !!

On September 25, 1789, Congress approved the amendments (all 12 of them) and then they were sent to the states.

James Madison’s friend, Tench Coxe, of Philadelphia, provided the most comprehensive analysis of the Second Amendment in a publication under the pen name “The Pennsylvanian.” It was printed in all the states.  He wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally called to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.”

The Bill of Rights was ratified on December 15, 1791.

All the leading commentators of the day saw the right to bear arms as an individual right, including  US Supreme Court Justice Joseph Story (1811-1845), who was the leading constitutional expert and commentator during the early-mid 20th century, Michigan Supreme Court Justice Thomas Cooley (1864-1885), the leading constitutional commentator at the end of the 19th century, and Sir William Blackstone, the leading English commentator who was very influential on our founders and framers.

St. George Tucker, who first gained fame as a Revolutionary War hero from Virginia, became famous again for writing a very famous treatise. In 1803, he wrote a 5-volume set, being characterized as the American version of Blackstone’s “Commentaries.”  It was titled: Blackstone’s Commentaries, with Notes of Reference to the Constitution & Laws of the Federal Government of the United States & of the Commonwealth of Virginia.  Tucker was seen as the best source and authority on the original intent and early interpretation of the US Constitution until about 1825, and his work has been cited by the US Supreme Court over forty times. For those looking to understand the meaning and intent of the Constitution at the time it was adopted and as it served our first sessions of government, it would be interesting to read Tucker’s volumes.

Tucker wrote about Blackstone’s exposition on the right to arms as it existed in the English law and explained how it applied to the United States. Tucker wrote: “’The right of the people to keep and bear arms shall not be infringed.’ This amendment is without any qualification as to their condition or degree, as in the case of the British government.”

He went on to elaborate even further:  Explaining the scope of the amendment, he wrote: “This [the Second Amendment] may be considered the true palladium of liberty…  The right of the self-defense is the first law of nature; in most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, then liberty, if not already annihilated, is on the brink of destruction.”

In 1825, Tucker’s treatise was replaced by the text written by William Rawle – A View of the Constitution of the United States of America. Regarding the Second Amendment, Rawle wrote in his book: “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people..”  [Rawle was part of the convention in Pennsylvania that ratified the US Bill of Rights; he was offered the position of first US Attorney General but turned it down].

The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America.  In his text, he explains exactly what the right is that is protected in the Second Amendment: “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose…”

Professor Randy Burnett of Boston University’s School of Law sums up the history of the Second Amendment this way: “What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms.  What we don’t have – what we don’t find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right.”

Professor Eugene Volokh, of the UCLA School of Law, comments: “Throughout the 1700’s, throughout the 1800’s, and up until the early 1900’s, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states’ right point of view.” (States right to call a militia, that is).

But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?

“The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen.”  — The Court of Appeals for the 6th Circuit (2000)

“The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia.”   — The Court of Appeals for the 9th Circuit (1996)

The conservatives on the bench in the Heller case and then in the McDonald case got it right. They chose to be intellectually honest.

References:

DVD:  “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006).  Second Amendment Films LLC

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

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

McDonald v. Chicago, 561 US 742 (2010)

Don B. Kates, Jr.  “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).    Referenced:  http://www.constitution.org/2ll/2ndschol/57mich.pdf

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights.  Referenced at:  http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

Teaching American History (an Intereactive Resource) –  http://teachingamericanhistory.org/ratification/overview/

Desperately Seeking Security – For Our Second Amendment

SECOND AMENDMENT - minuteman with gun

by Diane Rufino, July 20, 2016

To those who are serious about preventing the federal government from coming after our Second Amendment rights, please read and take note…..   

If you really want to make a difference and prevent the government from infringing on our Second Amendment, you have to actively support Nullification as a remedy and propose nullification measures to use the power of the States and the People to protect THEIR protections expressly stated in the US Constitution – the Bill of Rights.  I’m not saying you have to necessarily come out and use that word, but you absolutely need to support the concept.

Remember what the preamble to the Bill of Rights emphasizes: “The Conventions of a number of States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”   In other words, amendments One through Nine are “further restrictions on the federal government” while the Tenth is a further declaration of the intent of the Constitution (as a compact) – that the States have only delegated a select few of their sovereign powers to a common government for common purposes – for a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade – and they retain and reserve the remainder of them.

You MUST start talking about the Constitution in terms of Compact Theory and reject any characterization of the country as a Union of people rather than States (Lincoln’s rhetoric).  Only when the Constitution is once again referred to and characterized as it was intended – a compact (history is complete with its references and justifications, including from all our Founding Fathers, the Constitutional Convention of 1787, from the writings of our two greatest founders Thomas Jefferson and James Madison, the State Ratifying Conventions, and even Article VII of the US Constitution itself), can we stand on the firm ground necessary to reassert our position – that the government has no authority to burden the rights recognized and protected in the Bill of Rights and indeed which formed the very basis for our independence from Great Britain. Compacts have implicit rights and remedies reserved to its signing parties, very similar to contract law and even agency law.

You MUST start talking about State Sovereignty Bills that will protect the citizens in every state from any gun control measure that burdens our Second Amendment guarantee.  And I mean, REAL sovereignty bills that include interposition provisions and intent to enforce them. Montana introduced such a bill (or resolution) several years ago which reasserted its sovereignty under the Tenth Amendment and characterizing her position vis-a-vis the other States and the federal government in terms of a social compact where each State, as a party to that compact, has the implicit right (just as a party to a contract) to reassert the original terms of the agreement, to ensure that they are faithfully followed, and to assert her right to sever its bond and withdraw from the Union when that compact has been violated and frustrated.  The Montana bill includes a provision that puts the federal government on notice that if it attempts to do any of a list of things (I believe the bill lists 5 specific things, including GUN CONTROL, limiting the Second Amendment), then it would consider it “a fatal breach of the compact that holds us together in the Union.”

This is the only way you fight back against the designs of our present bloated, self-serving government.  These bold assertions and the strong political posturing of States will put the government on notice and equally will put the US Supreme Court on notice as well. They move forward with gun control measures, they do so at the peril of the stability of the United States.

Petitions don’t amount to a hill of beans. Over 60% of the American people showed their opposition to government-mandated healthcare but the government went ahead with it anyway.

In a politically-incorrect and realistic world, laws are supposed to protect the good people and encourage constrained behavior for the benefit of an ordered and healthy/happy society.  A person should always be free to exercise his or her God-given rights and freedoms UNTIL it burdens another’s free exercise thereof.  Laws are also supposed to punish the bad people and DISCOURAGE bad behavior.  Our government is talking about Gun Control from an incorrect point of view with respect to the purpose of laws.  It seeks to punish good people because of the actions of bad people. In doing so, it will punish good people from doing what God inherently intended people to do – protect themselves, their families, and their property, using whatever means necessary to stop the evil.  The very definition of a criminal or the criminally-inclined is a person who doesn’t obey laws.  As with Prohibition, a prohibition on guns, a registry of guns, a long waiting period on gun ownership, a limitation on gun ownership and ammunition, etc etc will only create a thriving and creative black market which will only make sure that most criminals and super bad guys (and syndicates, such as terrorist organizations) will get lots of them while honest, law-abiding, vulnerable people which characterizes the overwhelming majority of Americans who now take huge risks now every time they venture out of their homes and go into public places, will have none.

I offer these comments as someone who is equally passionate in preventing the federal government from taking our rights away or even burdening them in any way.  It’s always a slippery slope to even give in just a little.

Remember, the Second Amendment is Freedom’s Strongest Guarantee !!

SECOND AMENDMENT - poster (last time I checked, it didn't read it is a Bill of Needs)

Impending Federal Gun Control Laws or Confiscation: States Don’t Fail Us Now !

NULLIFICATION - Gun Control (Clint Eastwood)

       by Diane Rufino, October 4, 2015

Obama Wants our Guns and It’s Time for the States to Make Clear: “We Will Not Comply…. We Will Nullify!”

Obama appears to be intent on burdening the second amendment – a fundamental and essential right of a free people.

The States need to decide where they stand: Either they will protect its people or the country is exactly what Abraham Lincoln envisioned – a country where the states are irrelevant and the federal government reigns absolutely supreme.

The States (and the local sheriffs) are the last line of defense between a rogue federal government and the People. The federal government appears to become more unhinged from the Constitution with each passing day and this should scare everyone. The need to erect lines of protection becomes ever more urgent. And this is where the States and sheriffs need to step in. They need to make clear that they will NULLIFY and INTERPOSE should the federal government attempt to infringe the right of the people to have and bear arms. We know what will be right around the corner should that happen… We only need to look at what happened to the unfortunate people of totalitarian regimes whose leaders confiscated guns. In this country, Patrick Henry explained it better than anyone else. A people who can’t defend themselves cannot assert their rights against the government and are therefore doomed to surrender them.

In 1775, after the British Crown and Parliament set out to punish the colonies for their “rebellious spirit” in frustrating its taxation schemes and its conduct in tossing tea overboard in Boston Harbor in protest of the monopoly established by the Tea Act by imposing the series of laws known as the Coercive Acts (unaffectionately referred to as the “Intolerable Acts” by the colonists), the colonies sought to appeal King George III to interpose on their behalf and end the arbitrary and oppressive treatment of them.

In September 1774, the First Continental Congress met in Philadelphia to address the colonies’ collective response to the Intolerable Acts. On October 25, it drafted a respectful response to the King, which would be known as the “Declarations and Resolves” and delegates were then dispatched to present them to him in person. Despite the anger that the colonies felt towards Great Britain after Parliament enacted the Coercive Acts, our first Congress was still willing to assert its loyalty to the king. In return for this loyalty, Congress asked the king to address and resolve the specific grievances of the colonies; in particular, it asked that the Acts be repealed. The petition, written by Continental Congressman John Dickinson, laid out what Congress felt was undo oppression of the colonies by the British Parliament. King George would ignore the Declarations and Resolves and rather, he would use them to mock the colonies. He laughed, claiming that while they publicly pledged their loyalty to him, they were probably preparing for armed revolution. He found them ingenuous and not very clever.

[Approximately eight months after the Declarations were presented to King George and without any response, on July 6, 1775, the Second Continental Congress adopted a resolution entitled “Declaration of the Causes and Necessity of Taking Up Arms.” On October 27, 1775 that King George appeared before both houses of the Parliament to address his concern about the increased rebellious nature of the colonies. He described the colonies as being in a state of rebellion, which he viewed as a traitorous action against himself and Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies. With that, he gave Parliament his consent to dispatch troops to use against his own subjects – the very people who looked to him for respect and protection].

On March 23, 1775, Patrick Henry attended a meeting of the Second Virginia Convention, with a very important issue he intended to address. It would be the second convention held after the Royal Governor of Virginia dissolved the colonial legislature, the House of Burgesses, for its solidarity with Massachusetts (after Parliament closed the port of Boston as punishment for the Boston Tea Party). The House of Burgesses would continue to meet, albeit in secret, but would operate in convention (These would serve as Virginia’s revolutionary provisional government).

While he knew the King had ignored the respectful petition by the First Continental Congress and had continued to treat them without the reserved rights afforded all English subjects, Henry could not know for sure that he would authorize military action against them. But he certainly saw it coming.

As tensions were mounting between Great Britain and the colonies, the Second Virginia Convention convened in secret at St. John’s Church in Richmond to discuss the Old Dominion’s strategy in negotiating with the Crown. The roughly 120 delegates who filed into Richmond’s St. John’s Church were a veritable “Who’s Who” of Virginia’s colonial leaders – George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry, a well-respected lawyer and orator. Henry had long held a reputation as one of Virginia’s most vocal opponents of England’s oppressive taxation schemes. During the Stamp Act controversy in 1765, he bordered on treasonous activity when he delivered a speech in which he hinted that King George risked meeting the same fate as Julius Caesar if he maintained his oppressive policies. As a recent delegate to the Continental Congress, he resounded Ben Franklin’s call for colonial solidarity by proclaiming, “The distinctions between Virginians, Pennsylvanians, New Yorkers and New Englanders are no more. I am not a Virginian; I am an American.”

Henry was convinced that war was around the corner. And he arrived at the Virginia Convention determined to persuade his fellow delegates to adopt a defensive stance against Great Britain. On that fateful evening of March 23, he put forward a resolution proposing that Virginia’s counties raise militiamen “to secure our inestimable rights and liberties, from those further violations with which they are threatened.” The suggestion of forming a colonial militia was not shocking in itself. After all, other colonies had already passed similar resolutions and had begun forming militias. And Henry himself had already taken it upon himself to raise a volunteer outfit in his home county of Hanover. Nevertheless, his proposal was not met with the approval he had hoped for. Many in the audience were skeptical at approving any measure that might be viewed as combative. Britain, after all, was the strongest military power in the world. They still held out hope for a peaceful reconciliation.

After several delegates had spoken on the issue, Patrick Henry rose from his seat in the third pew and took the floor. A Baptist minister who was present that evening would later describe him as having “an unearthly fire burning in his eye.” Just what happened next has long been a subject of debate. Henry spoke without notes, and no transcripts of his exact words have survived to today. The only known version of his remarks was reconstructed in the early 1800s by William Wirt, a biographer who corresponded with several men that attended the Convention. According to this version, Henry began by stating his intention to “speak forth my sentiments freely” before launching into an eloquent warning against appeasing the Crown.

I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation?

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak and unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us……. There is no retreat but in submission and slavery! Our chains are forged!

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun…… Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Less than a month later, shots would be fired at Lexington and Concord. The war that Henry saw coming had finally begun.

Patrick Henry had the intuition to understand that a leader “whose character is thus marked by every act which defines a tyrant” cannot be trusted to allow his people to enjoy the freedom that they petition for. And when push comes to shove, the more they demand it, the more oppressive his response would be. And thus, since that leader, King George III, was considered to be unfit to be the ruler of a free people, in the mind of Patrick Henry, if he indeed decided to use force to subjugate the people of Virginia should be prepared with a force of their own to defend their liberty. Henry would later refer to Liberty as “that precious gem.”

A leader “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

Americans still consider themselves a free people. And Americans still want to believe their government believes in their right to be so. But the one problem is that most Americans believe their “government” to be the federal government. A people who understand the foundations and underpinnings of liberty and freedom know that the federal government is not their government but rather their state government is their government. The federal government primarily serves the states, or at least, it was intended that way. Yet for limited objects, expressly defined in Article I, Section 8, its legislation can touch the people.

It is the state government, and not the federal government, that can protect an individual’s inalienable liberties. Which government in recent years has shown disregard for the fundamental rights of the People – federal or state? Which government has enacted the largest tax increase in our nation’s history? Which government has denied people the fundamental right to manage their healthcare? Which government has ignored immigration laws and attempted to fundamentally change the character of the nation illegally? Which government has demanded that marriage laws (based on natural criteria in place for thousands of years) be fundamentally altered? And which government has poised itself for years now to restrain the people in their right to have and bear arms? Again, a government “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

The American states, after fighting and winning a costly war for their independence, had to decide on the best form of government to embrace the values they proclaimed in the Declaration of Independence. They asserted the same rights that the British held dear and which they fought to defend, spanning hundreds of years, but their task was to secure them more firmly so that their posterity – “millions yet unborn and generations to come” (from the anti-Federalist paper, Brutus I) – would enjoy the same degree of freedom. They didn’t want Americans to endure the same tortured history as the British, who enjoyed freedom under benevolent kings but oppression and even death under tyrants. Freedom, according to Thomas Jefferson, including as alluded to in the Declaration of Independence, was the right to be free from an aggressive or oppressive government. To that end, the government established by the Constitution of 1787, with powers limited in DC and balanced by the bulk of powers retained by the states, with its separation of powers and elaborate system of checks and balances, with its week judicial branch, and with a Bill of Rights, was believed to provide the best system to preserve the rights they fought for. Furthermore, in America, rights are understood to be inalienable, endowed by our Creator. In Britain, on the other hand, rights are those generously granted by government. Rights were only those limitations on government that Kings recognized by a signature on a charter.

The US Bill of Rights, modeled after the English Bill of Rights of 1689, exists to protect the individual against the government. Included in our Bill of Rights are the rights to be free from a national religion, the right to the free exercise of one’s religion and the rights of conscience. It includes the right of free speech, the right of assembly, the right to a free press, the right to petition the government, the right to have and bear arms, the right to be free in one’s home, papers, and effects from unreasonable searches and seizures, the right to a jury trial, various rights of a person accused of a crime, the right not to have one’s property arbitrarily confiscated by the government, the right to be free from cruel and unusual punishment, and others.

The second amendment is currently under unrelenting attack by our current administration, with Obama leading the charge. Just two days ago, he spoke not only about the need for gun control but hinted about possible confiscation. When Obama spoke in reaction to the heinous October 1 attack on Umpqua Community College, in Oregon, he went beyond his usual calls for more gun control and suggested instead that the United States consider following the path taken by Australia and Great Britain.

In the mid-1990s Australia and Great Britain both instituted complete bans on firearm possession. And Obama referenced those bans: “We know that other countries, in response to one mass shooting, have been able to craft laws that almost eliminate mass shootings. Friends of ours, allies of ours – Great Britain, Australia, countries like ours. So we know there are ways to prevent it.”

What Obama didn’t clarify is that Australia has no constitution nor does it have a Bill of Rights. The rights of the people are not absolute. Great Britain, which also does not have a constitution, per se, does protect gun rights to some degree in its Bill of Rights of 1689. That document allowed for Protestant citizenry to “have Arms for their Defense suitable to their conditions and as allowed by law,” and restricted the right of the English Crown to have a standing army or to interfere with Protestants’ right to bear arms “when Papists were both armed and employed contrary to Law.” It also established that regulating the right to bear arms was one of the powers of Parliament and not of the monarch. Thus, the right was not absolute and it was clearly articulated as such. In fact, Sir William Blackstone wrote in his Blackstone’s Commentaries on the Laws of England (1765) about the right to have arms being auxiliary to the “natural right of resistance and self-preservation,” but subject to suitability and allowance by law.

As Mark Levin explained: “The second amendment isn’t in the Bill of Rights to protect you in your hunting rights. The second amendment isn’t there to protect you in your sports-shooting rights. The second amendment was added to the Constitution to protect you against a centralized government. The militia part of the second amendment underscores this point. The point is that the states can maintain militias to protect the states from an oppressive tyrannical central government. I don’t mean to be provocative, but that’s just history. That’s why we have the second amendment.”

What is that history? Our Founding Fathers, having just broken away from Great Britain, understood the new federal government they were ratifying might one day become just as tyrannical. If it had the authority to control citizen access to firearms, then it could disarm them, just as the British attempted to do. This would make any attempts to restore liberties futile. The second amendment was specifically included in the Bill of Rights to prevent this.

James Madison, the father of the Constitution, said in 1789 that “A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” When the Founders wrote of a “well regulated” militia, they meant that militias needed to be well-regulated through training and drilling in order to be effective in battle. It was merely common sense. This could only happen if citizens had unrestricted access to firearms.

The Second Amendment’s guarantee of an individual’s right to have and bear arms is the right which secures all other rights. The First Amendment protects the other rights by permitting the speech and the expression, and the assembly and the petition and the use of the press to call out the government when it tramples on those rights, but the Second Amendment, with its force, is able to secure them, should the government ignore the former. In other words, when the First Amendment fails, the Second is there to preserve and secure the people in their liberty.

The Preamble to the Bill of Rights expresses the States’ intention in demanding a Bill of Rights as a condition to ratification. It reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, that in order to prevent misconstruction or abuse of its powers, further declaratory and restrictive clauses should be added, which shall extend the ground of public confidence in the Government, and will best ensure the beneficent ends of its institution” According to the Preamble, the federal government is PROHIBITED from even contemplating the issue of abridging the rights guaranteed in the second amendment. The liberty rights contained in the Bill of Rights demand an ABSOLUTE BAN by the federal government action in those areas. Being that the Supreme Court has been in the business of enlarging the rights contained in those amendments (ie, privacy rights, for example, rights of criminals), we can assume that our right to have and bear arms is similarly enlarged.

Although the Bill of Rights was adopted after the Constitution was ratified, it was the absolute assurance by James Madison that he would draft a Bill of Rights and have it submitted and adopted by the First US Congress (June 8, 1788) that convinced several skeptical, and important, states to finally ratify. In other words, BUT FOR the fact that a Bill of Rights would be added to the Constitution to further protect the rights of the People and the States, the Constitution would never have been adopted and the Union, as we know it, would not have been formed. After the delegates concluded their convention in Philadelphia in September 1787, it was clear that the Constitution that had been written was not very popular (particularly with the anti-Federalists). Some very important delegates refused to even sign it and some promised to do all they could to prevent its ratification by the states. Edmund Randolph and George Mason (both of VA), Elbridge Gerry (of MA), John Lansing and Robert Yates (both of NY), and Martin Luther (of DE) all refused to sign because of a lack of Bill of Rights and a deep concern that the government created would endanger the rights of the States. Yates would go on to write some of the strongest anti-Federalist essays, under the pen name Brutus, and fellow New Yorker, Governor George Clinton, would write some as well (under the name Cato). Two of our most important Founding Fathers, Patrick Henry and Richard Henry Lee, although asked to be delegates to the Convention, declined because they were suspicious of those running the Convention (namely Madison, whom they suspected to have ambitious plans for the meeting). They believed a government stronger than the Articles would compromise the sovereignty of the States.

Indeed, it was unclear whether the Constitution would be ratified by the States. The Constitution was in deep trouble in the conventions of four states – Virginia, New York, Massachusetts, and North Carolina. They were some of the biggest states. The first three were the most important and influential of the States. Without the guarantee of a Bill of Rights, those states were not going to ratify. The formation of a “more perfect union” appeared to be in jeopardy. Even with the guarantee, the votes for ratification were by a fairly slim margin. North Carolina had rejected the Constitution outright. It was not until a Bill of Rights was added that it called another ratifying convention to take another vote.

Does anyone believe that a constitution that expressly created a government as large, bloated, concentrated, oppressive, arrogant, monopolistic, and corrupt as the one in existence today would have been drafted and produced by the delegates to the Constitutional Convention of 1787? Does anyone believe that the delegates in attendance at that convention, the great leaders of our founding generation, knowing their concerns to respect the spirit of the Revolution and to protect their state sovereignty (and yield as little sovereign power as possible), would have drafted and signed such a document? And even if such a document would have been produced at the Convention, does anyone believe a single State would have ratified it and surrendered essentially all of its sovereignty? NO WAY !! There is no way that Virginia or New York or Massachusetts or North Carolina would have ratified it. NO WAY! None of them would have ratified it.

And yet we’ve allowed the government – what it’s become – to assert, unchallenged, that whatever it does and says is the supreme law of the land. Tyranny is defined as the action of an unjust and oppressive government. For a country that defines the boundaries of government on its people through a written constitution, tyranny occurs when unconstitutional laws are forced – enforced – on the people. After all, when a government assumes powers not delegated to it, it naturally has to usurp them from their rightful depository, which in the case of the United States is the States and the People.

Our government – all three branches – continue to act to mock individual liberty and states’ rights. Certainly our president does so at every given opportunity. Our government – all three branches – continues to act to ignore and frustrate the will of the People even though a democracy is their birthright. As Daniel Webster once wrote: “It is, Sir, the people’s government, made for the people, made by the people, and answerable to the people.” (note that this quote is the forerunner to Lincoln’s famous line in the Gettysburg Address).

The federal government, which was conceived as a “government of the people, by the people, for the people,” unfortunately now only rests on two of those legs. In has failed for many years now to be a government “for the people.”

Enough is enough.

Gun Rights mark a line in the sand. That line represents a tolerance of government that absolutely cannot be crossed. If government should attempt gun control that burdens or attempt confiscation, the line will have been crossed. The Supreme Court WOULD HAVE TO IMMEDIATELY STRIKE THAT ACTION DOWN. Hell, the Supreme Court has held over and over again that any action by government that should happen to burden even ever so lightly a woman’s right to have an abortion cannot be tolerated. And an abortion actually and absolutely KILLS another human being – an innocent and helpless one. The right to an abortion is NOT mentioned in the Constitution and certainly NOT in the Bill of Rights. The right to have and bear arms is. It is addressed plainly and without condition or pre-condition in the second amendment. By applying the same rational as the Court uses to ensure women their unfettered right and access to an abortion, the government MUST NOT in any way, shape, or form burden an individual’s right to have and bear arms. The right to bear arms is rooted in the natural rights of self-defense and self-preservation. The right to have an abortion is rooted in the selfish goal of convenience.

When the government crosses that line, the Declaration of Independence tells us what the Peoples’ rights are, under the theory of social compact (which the US Constitution is):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Should the government attempt to burden or deny the American people of their gun rights, our natural right of self-defense (even from our own government) and self-preservation (to live free, as our Creator endowed us and as nature intended) allows us to dissolve our government – that is absolve us from allegiance to it – and establish a new government that is dedicated to the protection of our God-given liberties. Personally, I believe the Constitution is perfect; it just needs verbage that makes it absolutely clear that its very terms are its limitations, there are no elastic clauses or implied powers, there is no independent legislative power attached to the General Welfare or Necessary and Proper clauses, no object expressly delegated to the legislative branch is allowed to be delegated to an un-elected group of people, Congress is expressly forbidden to tax and spend for any reason other than what is listed expressly in Article I Section 8, a provision should be included to give the states the power to audit the spending budget of the government for strict constitutionality, a provision should be added to require Congress to balance its budget every year, the Supreme Court can only offer an opinion which is subject to an appeal to the State courts, the “Wall of Separation” is removed from federal court jurisprudence, the president’s powers must be severely limited by additional language in the Constitution, presidents will no longer be allowed to issue executive orders, the bar for impeachment of a president will be lowered and in certain cases Congress MUST issue articles of impeachment and seek to remove him, consequences will be provided for in the Constitution for representatives and officials who violate their oath of office, the 14th amendment must be clarified as not intending to include the incorporation doctrine (so that the Bill of Rights once again only applies to the actions of the federal government), the 16th and 17th amendments must be repealed, an outright prohibition and a provision should be added that states that when the federal government over-steps its authority that threatens the balance of power between federal government and the states, it shall be viewed as a fatal breach of the compact that binds the states and as such they have the option of dissolving their allegiance. However, if the Constitution cannot be amended to assure that a future government remains adherent to its limits, then James Madison has set the example for us. We don’t have to “amend” the Constitution if we believe it to be seriously flawed. We can simply start from scratch.

The second paragraph of the Declaration of Independence continues:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

Our government has been intent on enlarging and redefining its powers almost from the very beginning. It has done everything it has wanted to do to achieve the things it believed it needed to do or simply wanted to do (as in Barack Obama’s case). A government dependent on the separation of powers for proper functioning has become a government monopoly to ignore proper functioning in order to become what the British Kings used to be…. Supreme, domineering, coercive, and oppressive. The people’s government has been replaced by the government’s government. Liberty-loving Americans have been disposed to suffer long enough. Threats to take away our gun rights, however, would be the final straw.

Should Obama and his administration do more than simply talk about gun control and possible confiscation, it would be incumbent upon the states to NULLIFY any legislation or policy and then INTERPOSE for the protection and security of the People to have and bear arms. The next step, should the government fail to back down, would be to declare the federal action or actions to constitute a FATAL BREACH of the compact that brought the states together in the union and therefore the bonds of allegiance are severed and the Union creating the “United States” is thereby dissolved. The federal government would therefore have no jurisdiction except within the District of Columbia, I suppose.

The states need to act – NOW. Each state needs to adopt resolutions and enact legislation protecting the gun rights of its citizens. Those that respect the second amendment need to start attracting gun manufacturing and ammunition industry to their states. The states need to put the president and the administration, and including the federal courts, on notice of their intentions.

If the federal government intends to or attempts to violate the second amendment, the People need to know they can count on their government – that is, their state government. I hope their response will be clear and collective – WE WILL NOT COMPLY… WE WILL NULLIFY! Liberty will require such a response.

References:

Patrick Henry’s Speech, History.com. Referenced at: http://www.history.com/news/patrick-henrys-liberty-or-death-speech-240-years-ago

Congress Petitions English King to Address Grievances, History.com. Referenced at: http://www.history.com/this-day-in-history/congress-petitions-english-king-to-address-grievances

King George III Speaks to Parliament of American Rebellion, History.com. Referenced at: http://www.history.com/this-day-in-history/king-george-iii-speaks-to-parliament-of-american-rebellion

Declaration and Resolves of the First Continental Congress. Referenced at: http://avalon.law.yale.edu/18th_century/resolves.asp

“Obama Trashes the Constitution and No One Says a Damn Thing!”, Mark Levin Show. Referenced at: https://www.youtube.com/results?search_query=mark+levin+obama+trashes+the+constitution+and+no+one+says+a+thing Also referenced at: http://therightscoop.com/mark-levin-obama-trashes-the-constitution-and-nobody-says-a-damn-thing/

“Obama Goes Beyond Mere Gun Control; Hints at Confiscation,” Breitbart News, October 3, 2015. Referenced at: http://www.breitbart.com/big-government/2015/10/03/obama-goes-beyond-mere-gun-control-hints-confiscation/

“The Second Amendment: It’s Meaning and Purpose, The Tenth Amendment Center, September 22, 2014. Referenced at: http://tenthamendmentcenter.com/2014/09/22/2nd-amendment-original-meaning-and-purpose/

“Madison’s Introduction of the Bill of Rights,” usconstitution.net. Referenced at: http://www.usconstitution.net/madisonbor.html

Appendix:

The Intolerable Acts included the following:
(i) Boston Port Act, which closed the port of Boston to all colonists until damages from the Boston Tea Party were paid.
(ii) Massachusetts Government Act, which gave the British government total control of town meetings, taking all decisions out of the hands of the colonists.
(iii) Administration of Justice Act, which made British officials immune to criminal prosecution in America.
(iv) The Quartering Act, which required colonists to house and quarter British troops on demand, including in private homes as a last resort.

by Diane Rufino, October 4, 2015

Obama Wants our Guns and It’s Time for the States to Make Clear: “We Will Not Comply…. We Will Nullify!”

Obama appears to be intent on burdening the second amendment – a fundamental and essential right of a free people.

The States need to decide where they stand: Either they will protect its people or the country is exactly what Abraham Lincoln envisioned – a country where the states are irrelevant and the federal government reigns absolutely supreme.

The States (and the local sheriffs) are the last line of defense between a rogue federal government and the People. The federal government appears to become more unhinged from the Constitution with each passing day and this should scare everyone. The need to erect lines of protection becomes ever more urgent. And this is where the States and sheriffs need to step in. They need to make clear that they will NULLIFY and INTERPOSE should the federal government attempt to infringe the right of the people to have and bear arms. We know what will be right around the corner should that happen… We only need to look at what happened to the unfortunate people of totalitarian regimes whose leaders confiscated guns. In this country, Patrick Henry explained it better than anyone else. A people who can’t defend themselves cannot assert their rights against the government and are therefore doomed to surrender them.

In 1775, after the British Crown and Parliament set out to punish the colonies for their “rebellious spirit” in frustrating its taxation schemes and its conduct in tossing tea overboard in Boston Harbor in protest of the monopoly established by the Tea Act by imposing the series of laws known as the Coercive Acts (unaffectionately referred to as the “Intolerable Acts” by the colonists), the colonies sought to appeal King George III to interpose on their behalf and end the arbitrary and oppressive treatment of them.

In September 1774, the First Continental Congress met in Philadelphia to address the colonies’ collective response to the Intolerable Acts. On October 25, it drafted a respectful response to the King, which would be known as the “Declarations and Resolves” and delegates were then dispatched to present them to him in person. Despite the anger that the colonies felt towards Great Britain after Parliament enacted the Coercive Acts, our first Congress was still willing to assert its loyalty to the king. In return for this loyalty, Congress asked the king to address and resolve the specific grievances of the colonies; in particular, it asked that the Acts be repealed. The petition, written by Continental Congressman John Dickinson, laid out what Congress felt was undo oppression of the colonies by the British Parliament. King George would ignore the Declarations and Resolves and rather, he would use them to mock the colonies. He laughed, claiming that while they publicly pledged their loyalty to him, they were probably preparing for armed revolution. He found them ingenuous and not very clever.

[Approximately eight months after the Declarations were presented to King George and without any response, on July 6, 1775, the Second Continental Congress adopted a resolution entitled “Declaration of the Causes and Necessity of Taking Up Arms.” On October 27, 1775 that King George appeared before both houses of the Parliament to address his concern about the increased rebellious nature of the colonies. He described the colonies as being in a state of rebellion, which he viewed as a traitorous action against himself and Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies. With that, he gave Parliament his consent to dispatch troops to use against his own subjects – the very people who looked to him for respect and protection].

On March 23, 1775, Patrick Henry attended a meeting of the Second Virginia Convention, with a very important issue he intended to address. It would be the second convention held after the Royal Governor of Virginia dissolved the colonial legislature, the House of Burgesses, for its solidarity with Massachusetts (after Parliament closed the port of Boston as punishment for the Boston Tea Party). The House of Burgesses would continue to meet, albeit in secret, but would operate in convention (These would serve as Virginia’s revolutionary provisional government).

While he knew the King had ignored the respectful petition by the First Continental Congress and had continued to treat them without the reserved rights afforded all English subjects, Henry could not know for sure that he would authorize military action against them. But he certainly saw it coming.

As tensions were mounting between Great Britain and the colonies, the Second Virginia Convention convened in secret at St. John’s Church in Richmond to discuss the Old Dominion’s strategy in negotiating with the Crown. The roughly 120 delegates who filed into Richmond’s St. John’s Church were a veritable “Who’s Who” of Virginia’s colonial leaders – George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry, a well-respected lawyer and orator. Henry had long held a reputation as one of Virginia’s most vocal opponents of England’s oppressive taxation schemes. During the Stamp Act controversy in 1765, he bordered on treasonous activity when he delivered a speech in which he hinted that King George risked meeting the same fate as Julius Caesar if he maintained his oppressive policies. As a recent delegate to the Continental Congress, he resounded Ben Franklin’s call for colonial solidarity by proclaiming, “The distinctions between Virginians, Pennsylvanians, New Yorkers and New Englanders are no more. I am not a Virginian; I am an American.”

Henry was convinced that war was around the corner. And he arrived at the Virginia Convention determined to persuade his fellow delegates to adopt a defensive stance against Great Britain. On that fateful evening of March 23, he put forward a resolution proposing that Virginia’s counties raise militiamen “to secure our inestimable rights and liberties, from those further violations with which they are threatened.” The suggestion of forming a colonial militia was not shocking in itself. After all, other colonies had already passed similar resolutions and had begun forming militias. And Henry himself had already taken it upon himself to raise a volunteer outfit in his home county of Hanover. Nevertheless, his proposal was not met with the approval he had hoped for. Many in the audience were skeptical at approving any measure that might be viewed as combative. Britain, after all, was the strongest military power in the world. They still held out hope for a peaceful reconciliation.

After several delegates had spoken on the issue, Patrick Henry rose from his seat in the third pew and took the floor. A Baptist minister who was present that evening would later describe him as having “an unearthly fire burning in his eye.” Just what happened next has long been a subject of debate. Henry spoke without notes, and no transcripts of his exact words have survived to today. The only known version of his remarks was reconstructed in the early 1800s by William Wirt, a biographer who corresponded with several men that attended the Convention. According to this version, Henry began by stating his intention to “speak forth my sentiments freely” before launching into an eloquent warning against appeasing the Crown.

I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation?

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak and unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us……. There is no retreat but in submission and slavery! Our chains are forged!

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun…… Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Less than a month later, shots would be fired at Lexington and Concord. The war that Henry saw coming had finally begun.

Patrick Henry had the intuition to understand that a leader “whose character is thus marked by every act which defines a tyrant” cannot be trusted to allow his people to enjoy the freedom that they petition for. And when push comes to shove, the more they demand it, the more oppressive his response would be. And thus, since that leader, King George III, was considered to be unfit to be the ruler of a free people, in the mind of Patrick Henry, if he indeed decided to use force to subjugate the people of Virginia should be prepared with a force of their own to defend their liberty. Henry would later refer to Liberty as “that precious gem.”

A leader “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

Americans still consider themselves a free people. And Americans still want to believe their government believes in their right to be so. But the one problem is that most Americans believe their “government” to be the federal government. A people who understand the foundations and underpinnings of liberty and freedom know that the federal government is not their government but rather their state government is their government. The federal government primarily serves the states, or at least, it was intended that way. Yet for limited objects, expressly defined in Article I, Section 8, its legislation can touch the people.

It is the state government, and not the federal government, that can protect an individual’s inalienable liberties. Which government in recent years has shown disregard for the fundamental rights of the People – federal or state? Which government has enacted the largest tax increase in our nation’s history? Which government has denied people the fundamental right to manage their healthcare? Which government has ignored immigration laws and attempted to fundamentally change the character of the nation illegally? Which government has demanded that marriage laws (based on natural criteria in place for thousands of years) be fundamentally altered? And which government has poised itself for years now to restrain the people in their right to have and bear arms? Again, a government “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

The American states, after fighting and winning a costly war for their independence, had to decide on the best form of government to embrace the values they proclaimed in the Declaration of Independence. They asserted the same rights that the British held dear and which they fought to defend, spanning hundreds of years, but their task was to secure them more firmly so that their posterity – “millions yet unborn and generations to come” (from the anti-Federalist paper, Brutus I) – would enjoy the same degree of freedom. They didn’t want Americans to endure the same tortured history as the British, who enjoyed freedom under benevolent kings but oppression and even death under tyrants. Freedom, according to Thomas Jefferson, including as alluded to in the Declaration of Independence, was the right to be free from an aggressive or oppressive government. To that end, the government established by the Constitution of 1787, with powers limited in DC and balanced by the bulk of powers retained by the states, with its separation of powers and elaborate system of checks and balances, with its week judicial branch, and with a Bill of Rights, was believed to provide the best system to preserve the rights they fought for. Furthermore, in America, rights are understood to be inalienable, endowed by our Creator. In Britain, on the other hand, rights are those generously granted by government. Rights were only those limitations on government that Kings recognized by a signature on a charter.

The US Bill of Rights, modeled after the English Bill of Rights of 1689, exists to protect the individual against the government. Included in our Bill of Rights are the rights to be free from a national religion, the right to the free exercise of one’s religion and the rights of conscience. It includes the right of free speech, the right of assembly, the right to a free press, the right to petition the government, the right to have and bear arms, the right to be free in one’s home, papers, and effects from unreasonable searches and seizures, the right to a jury trial, various rights of a person accused of a crime, the right not to have one’s property arbitrarily confiscated by the government, the right to be free from cruel and unusual punishment, and others.

The second amendment is currently under unrelenting attack by our current administration, with Obama leading the charge. Just two days ago, he spoke not only about the need for gun control but hinted about possible confiscation. When Obama spoke in reaction to the heinous October 1 attack on Umpqua Community College, in Oregon, he went beyond his usual calls for more gun control and suggested instead that the United States consider following the path taken by Australia and Great Britain.

In the mid-1990s Australia and Great Britain both instituted complete bans on firearm possession. And Obama referenced those bans: “We know that other countries, in response to one mass shooting, have been able to craft laws that almost eliminate mass shootings. Friends of ours, allies of ours – Great Britain, Australia, countries like ours. So we know there are ways to prevent it.”

What Obama didn’t clarify is that Australia has no constitution nor does it have a Bill of Rights. The rights of the people are not absolute. Great Britain, which also does not have a constitution, per se, does protect gun rights to some degree in its Bill of Rights of 1689. That document allowed for Protestant citizenry to “have Arms for their Defense suitable to their conditions and as allowed by law,” and restricted the right of the English Crown to have a standing army or to interfere with Protestants’ right to bear arms “when Papists were both armed and employed contrary to Law.” It also established that regulating the right to bear arms was one of the powers of Parliament and not of the monarch. Thus, the right was not absolute and it was clearly articulated as such. In fact, Sir William Blackstone wrote in his Blackstone’s Commentaries on the Laws of England (1765) about the right to have arms being auxiliary to the “natural right of resistance and self-preservation,” but subject to suitability and allowance by law.

As Mark Levin explained: “The second amendment isn’t in the Bill of Rights to protect you in your hunting rights. The second amendment isn’t there to protect you in your sports-shooting rights. The second amendment was added to the Constitution to protect you against a centralized government. The militia part of the second amendment underscores this point. The point is that the states can maintain militias to protect the states from an oppressive tyrannical central government. I don’t mean to be provocative, but that’s just history. That’s why we have the second amendment.”

What is that history? Our Founding Fathers, having just broken away from Great Britain, understood the new federal government they were ratifying might one day become just as tyrannical. If it had the authority to control citizen access to firearms, then it could disarm them, just as the British attempted to do. This would make any attempts to restore liberties futile. The second amendment was specifically included in the Bill of Rights to prevent this.

James Madison, the father of the Constitution, said in 1789 that “A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” When the Founders wrote of a “well regulated” militia, they meant that militias needed to be well-regulated through training and drilling in order to be effective in battle. It was merely common sense. This could only happen if citizens had unrestricted access to firearms.

The Second Amendment’s guarantee of an individual’s right to have and bear arms is the right which secures all other rights. The First Amendment protects the other rights by permitting the speech and the expression, and the assembly and the petition and the use of the press to call out the government when it tramples on those rights, but the Second Amendment, with its force, is able to secure them, should the government ignore the former. In other words, when the First Amendment fails, the Second is there to preserve and secure the people in their liberty.

The Preamble to the Bill of Rights expresses the States’ intention in demanding a Bill of Rights as a condition to ratification. It reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, that in order to prevent misconstruction or abuse of its powers, further declaratory and restrictive clauses should be added, which shall extend the ground of public confidence in the Government, and will best ensure the beneficent ends of its institution” According to the Preamble, the federal government is PROHIBITED from even contemplating the issue of abridging the rights guaranteed in the second amendment. The liberty rights contained in the Bill of Rights demand an ABSOLUTE BAN by the federal government action in those areas. Being that the Supreme Court has been in the business of enlarging the rights contained in those amendments (ie, privacy rights, for example, rights of criminals), we can assume that our right to have and bear arms is similarly enlarged.

Although the Bill of Rights was adopted after the Constitution was ratified, it was the absolute assurance by James Madison that he would draft a Bill of Rights and have it submitted and adopted by the First US Congress (June 8, 1788) that convinced several skeptical, and important, states to finally ratify. In other words, BUT FOR the fact that a Bill of Rights would be added to the Constitution to further protect the rights of the People and the States, the Constitution would never have been adopted and the Union, as we know it, would not have been formed. After the delegates concluded their convention in Philadelphia in September 1787, it was clear that the Constitution that had been written was not very popular (particularly with the anti-Federalists). Some very important delegates refused to even sign it and some promised to do all they could to prevent its ratification by the states. Edmund Randolph and George Mason (both of VA), Elbridge Gerry (of MA), John Lansing and Robert Yates (both of NY), and Martin Luther (of DE) all refused to sign because of a lack of Bill of Rights and a deep concern that the government created would endanger the rights of the States. Yates would go on to write some of the strongest anti-Federalist essays, under the pen name Brutus, and fellow New Yorker, Governor George Clinton, would write some as well (under the name Cato). Two of our most important Founding Fathers, Patrick Henry and Richard Henry Lee, although asked to be delegates to the Convention, declined because they were suspicious of those running the Convention (namely Madison, whom they suspected to have ambitious plans for the meeting). They believed a government stronger than the Articles would compromise the sovereignty of the States.

Indeed, it was unclear whether the Constitution would be ratified by the States. The Constitution was in deep trouble in the conventions of four states – Virginia, New York, Massachusetts, and North Carolina. They were some of the biggest states. The first three were the most important and influential of the States. Without the guarantee of a Bill of Rights, those states were not going to ratify. The formation of a “more perfect union” appeared to be in jeopardy. Even with the guarantee, the votes for ratification were by a fairly slim margin. North Carolina had rejected the Constitution outright. It was not until a Bill of Rights was added that it called another ratifying convention to take another vote.

Does anyone believe that a constitution that expressly created a government as large, bloated, concentrated, oppressive, arrogant, monopolistic, and corrupt as the one in existence today would have been drafted and produced by the delegates to the Constitutional Convention of 1787? Does anyone believe that the delegates in attendance at that convention, the great leaders of our founding generation, knowing their concerns to respect the spirit of the Revolution and to protect their state sovereignty (and yield as little sovereign power as possible), would have drafted and signed such a document? And even if such a document would have been produced at the Convention, does anyone believe a single State would have ratified it and surrendered essentially all of its sovereignty? NO WAY !! There is no way that Virginia or New York or Massachusetts or North Carolina would have ratified it. NO WAY! None of them would have ratified it.

And yet we’ve allowed the government – what it’s become – to assert, unchallenged, that whatever it does and says is the supreme law of the land. Tyranny is defined as the action of an unjust and oppressive government. For a country that defines the boundaries of government on its people through a written constitution, tyranny occurs when unconstitutional laws are forced – enforced – on the people. After all, when a government assumes powers not delegated to it, it naturally has to usurp them from their rightful depository, which in the case of the United States is the States and the People.

Our government – all three branches – continue to act to mock individual liberty and states’ rights. Certainly our president does so at every given opportunity. Our government – all three branches – continues to act to ignore and frustrate the will of the People even though a democracy is their birthright. As Daniel Webster once wrote: “It is, Sir, the people’s government, made for the people, made by the people, and answerable to the people.” (note that this quote is the forerunner to Lincoln’s famous line in the Gettysburg Address).

The federal government, which was conceived as a “government of the people, by the people, for the people,” unfortunately now only rests on two of those legs. In has failed for many years now to be a government “for the people.”

Enough is enough.

Gun Rights mark a line in the sand. That line represents a tolerance of government that absolutely cannot be crossed. If government should attempt gun control that burdens or attempt confiscation, the line will have been crossed. The Supreme Court WOULD HAVE TO IMMEDIATELY STRIKE THAT ACTION DOWN. Hell, the Supreme Court has held over and over again that any action by government that should happen to burden even ever so lightly a woman’s right to have an abortion cannot be tolerated. And an abortion actually and absolutely KILLS another human being – an innocent and helpless one. The right to an abortion is NOT mentioned in the Constitution and certainly NOT in the Bill of Rights. The right to have and bear arms is. It is addressed plainly and without condition or pre-condition in the second amendment. By applying the same rational as the Court uses to ensure women their unfettered right and access to an abortion, the government MUST NOT in any way, shape, or form burden an individual’s right to have and bear arms. The right to bear arms is rooted in the natural rights of self-defense and self-preservation. The right to have an abortion is rooted in the selfish goal of convenience.

When the government crosses that line, the Declaration of Independence tells us what the Peoples’ rights are, under the theory of social compact (which the US Constitution is):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Should the government attempt to burden or deny the American people of their gun rights, our natural right of self-defense (even from our own government) and self-preservation (to live free, as our Creator endowed us and as nature intended) allows us to dissolve our government – that is absolve us from allegiance to it – and establish a new government that is dedicated to the protection of our God-given liberties. Personally, I believe the Constitution is perfect; it just needs verbage that makes it absolutely clear that its very terms are its limitations, there are no elastic clauses or implied powers, there is no independent legislative power attached to the General Welfare or Necessary and Proper clauses, no object expressly delegated to the legislative branch is allowed to be delegated to an un-elected group of people, Congress is expressly forbidden to tax and spend for any reason other than what is listed expressly in Article I Section 8, a provision should be included to give the states the power to audit the spending budget of the government for strict constitutionality, a provision should be added to require Congress to balance its budget every year, the Supreme Court can only offer an opinion which is subject to an appeal to the State courts, the “Wall of Separation” is removed from federal court jurisprudence, the president’s powers must be severely limited by additional language in the Constitution, presidents will no longer be allowed to issue executive orders, the bar for impeachment of a president will be lowered and in certain cases Congress MUST issue articles of impeachment and seek to remove him, consequences will be provided for in the Constitution for representatives and officials who violate their oath of office, the 14th amendment must be clarified as not intending to include the incorporation doctrine (so that the Bill of Rights once again only applies to the actions of the federal government), the 16th and 17th amendments must be repealed, an outright prohibition and a provision should be added that states that when the federal government over-steps its authority that threatens the balance of power between federal government and the states, it shall be viewed as a fatal breach of the compact that binds the states and as such they have the option of dissolving their allegiance. However, if the Constitution cannot be amended to assure that a future government remains adherent to its limits, then James Madison has set the example for us. We don’t have to “amend” the Constitution if we believe it to be seriously flawed. We can simply start from scratch.

The second paragraph of the Declaration of Independence continues:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

Our government has been intent on enlarging and redefining its powers almost from the very beginning. It has done everything it has wanted to do to achieve the things it believed it needed to do or simply wanted to do (as in Barack Obama’s case). A government dependent on the separation of powers for proper functioning has become a government monopoly to ignore proper functioning in order to become what the British Kings used to be…. Supreme, domineering, coercive, and oppressive. The people’s government has been replaced by the government’s government. Liberty-loving Americans have been disposed to suffer long enough. Threats to take away our gun rights, however, would be the final straw.

Should Obama and his administration do more than simply talk about gun control and possible confiscation, it would be incumbent upon the states to NULLIFY any legislation or policy and then INTERPOSE for the protection and security of the People to have and bear arms. The next step, should the government fail to back down, would be to declare the federal action or actions to constitute a FATAL BREACH of the compact that brought the states together in the union and therefore the bonds of allegiance are severed and the Union creating the “United States” is thereby dissolved. The federal government would therefore have no jurisdiction except within the District of Columbia, I suppose.

The states need to act – NOW. Each state needs to adopt resolutions and enact legislation protecting the gun rights of its citizens. Those that respect the second amendment need to start attracting gun manufacturing and ammunition industry to their states. The states need to put the president and the administration, and including the federal courts, on notice of their intentions.

If the federal government intends to or attempts to violate the second amendment, the People need to know they can count on their government – that is, their state government. I hope their response will be clear and collective – WE WILL NOT COMPLY… WE WILL NULLIFY! Liberty will require such a response.

References:

Patrick Henry’s Speech, History.com. Referenced at: http://www.history.com/news/patrick-henrys-liberty-or-death-speech-240-years-ago

Congress Petitions English King to Address Grievances, History.com. Referenced at: http://www.history.com/this-day-in-history/congress-petitions-english-king-to-address-grievances

King George III Speaks to Parliament of American Rebellion, History.com. Referenced at: http://www.history.com/this-day-in-history/king-george-iii-speaks-to-parliament-of-american-rebellion

Declaration and Resolves of the First Continental Congress. Referenced at: http://avalon.law.yale.edu/18th_century/resolves.asp

“Obama Trashes the Constitution and No One Says a Damn Thing!”, Mark Levin Show. Referenced at: https://www.youtube.com/results?search_query=mark+levin+obama+trashes+the+constitution+and+no+one+says+a+thing Also referenced at: http://therightscoop.com/mark-levin-obama-trashes-the-constitution-and-nobody-says-a-damn-thing/

“Obama Goes Beyond Mere Gun Control; Hints at Confiscation,” Breitbart News, October 3, 2015. Referenced at: http://www.breitbart.com/big-government/2015/10/03/obama-goes-beyond-mere-gun-control-hints-confiscation/

“The Second Amendment: It’s Meaning and Purpose, The Tenth Amendment Center, September 22, 2014. Referenced at: http://tenthamendmentcenter.com/2014/09/22/2nd-amendment-original-meaning-and-purpose/

“Madison’s Introduction of the Bill of Rights,” usconstitution.net. Referenced at: http://www.usconstitution.net/madisonbor.html

Appendix:

The Intolerable Acts included the following:
(i) Boston Port Act, which closed the port of Boston to all colonists until damages from the Boston Tea Party were paid.
(ii) Massachusetts Government Act, which gave the British government total control of town meetings, taking all decisions out of the hands of the colonists.
(iii) Administration of Justice Act, which made British officials immune to criminal prosecution in America.
(iv) The Quartering Act, which required colonists to house and quarter British troops on demand, including in private homes as a last resort.