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/

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The Constitutionality of Gun Control Laws

Second Amendment - Poster (vulture)    by Diane Rufino

On January 16, 2013, President Obama signed 23 Executive Orders which he claimed are aimed at reducing gun violence.  Now begins the initiative to bring his comprehensive gun control scheme to Congress. The cornerstone of the scheme will include more inclusive and scrutinous background checks and a ban on assault weapons.  The National Rifle Association, however, doesn’t buy the story that the administration is selling. In fact, it believes there is a more ominous plan down the road.  The NRA is using a Justice Department memo it obtained, dated January 4, 2013 and written by one of the Justice Department’s top crime researchers, to argue that the Obama administration itself doesn’t believe that its proposed gun control plans will work to cut down on violence. Rather, it believes it will ultimately need to seize firearms and require national gun registration.  These, of course are ideas that the White House has not proposed and claims it does not support.

At this point, President Obama wants to ban assault weapons and ammunition magazines that exceed 10 rounds.  He and his fellow gun law proponents argue that no one should need more than that.  And the President is pushing for universal background checks for nearly all gun purchases. Today, checks are only mandatory on sales by federally licensed gun dealers, not transactions at gun shows or other private sales.

The Memo critiques the effectiveness of gun control proposals, including many that were put forward by the executive orders and now by proposed legislation, such as the registration and the assault weapon and ammunition magazine bans.

The memo says straw purchases and gun thefts are the largest sources of firearms used in crimes, and says such transactions “would most likely become larger if background checks at gun shows and private sellers were addressed.”  (Straw purchases are when criminals and those who are legally prohibited from owning a firearm have another person make the purchase for them). The memo says requiring background checks for more gun purchases could help, but also could lead to more illicit weapons sales. Criminals are not going to submit to background checks honestly.  They will continue to use false names and offer false information.

At the same time, President Obama is looking to stack the federal courts with anti-gun judicial nominations. For example, he is presently pushing Caitlin Halligan, currently the NY’s Solicitor General and an attorney with a long track record in favor of gun control, for the DC Court of Appeals. In fact, one Senate Republican said that she is the most “anti-Second Amendment nominee Obama has ever put forward.”  The final transformation of America will eventually occur at the hands of federal court judges who haven’t studied the writings of the Founding Fathers and who don’t understand the scheme of ordered liberty they envisioned for this country.

On January 18, Beaufort County, NC was the first local entity in the nation to take a stand against the President’s agenda to regulate gun rights and to stand up for the phrase in the Second Amendment which reads “The right of the people to have and bear arms shall not be infringed.” The Beaufort County Board of Commissioners passed the strongest Second Amendment Protection Resolution to date in North Carolina. Other counties in the state have followed suit, including Pitt, Franklin, Lenoir, and Cherokee – with varying degrees of strength and effectiveness). And still there are other counties who would like to adopt resolutions but have reservations as to what they can do legally.

The bottom line is that state and local elected representatives, as well as state and local civil servants, swear an oath to the US Constitution. They pledge a solemn vow, invoking the name of our Creator, to support and defend the Constitution of the United States.  The oath is not to support a “living constitution”; nor is it a promise to support any and all actions of the federal government, which is organized under the Constitution. The oath is to obey and support only lawful orders. After all, a legal framework with defined limitations is what is at the heart of our constitutional republic. In America, government is tasked with constraining people in unlawful conduct, but it is also obliged to constrain itself as well.  The framework was designed for a specific purpose, and that purpose is articulated most splendidly in the Declaration of Independence – for the free exercise of our God-given rights and liberties.

In helping those counties, those local Sheriffs, and those state officials assess the legality of taking a position seemingly antagonistic to the federal government, there are a series of questions to ask and answer.

Is the Particular Federal Law Supreme? –

The issue at stake is which federal laws are to be considered “Supreme,” and thus trump state law where there is any conflict and preclude any state from interfering with or frustrating the federal scheme. The Supremacy Clause (Article VI, clause 2) reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

The general rule – the correct rule – is that constitutional federal law trumps state law where it conflicts. The state law must therefore yield to the federal law.  This was the government’s argument when it challenged Arizona’s immigration bill, SB 1070.  In that case, the Supreme Court found that the government is indeed supreme on immigration, but nonetheless upheld parts of the Arizona bill because it concluded that they furthered and assisted the federal scheme.

The problem is the incorrect assumptions  too many government officials make – at both the federal and state level.  These assumptions are as follows: (1)  That every federal law is supreme law of the land under the Supremacy Clause; and  (2) That every federal law is constitutional.

Blind allegiance to the perceived supremacy of the federal government is disloyalty to the Constitution and to the United States.  In fact, it is a crime. Chief Justice John Marshall explained this in the landmark case Marbury v. Madison (1803):

With respect to the Constitution’s requirement, in Article VI, that federal officials, including judges, take an oath to “preserve, protect, and defend the Constitution of the United States.”)  “Why does it direct the judges to take an oath to support it?

The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument. It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall he made in pursuance of the Constitution, have that rank.

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?  If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime.”

Chief Justice Marshall used the example of a federal judge, but mockery and disloyalty apply to all those officials who accept and pledge the responsibility that the oath demands.

Is it Constitutional? –

In looking at federal law, the first question you should ask is whether it is constitutional.  Because under the Supremacy Clause, only laws made in pursuance to the Constitution are supreme.  If they are not, they are not only unconstitutional but they are also not supreme law.

As we all know, individuals are free to do whatever they want, unless they are constrained by the law.  Government, on the other hand, can only act pursuant to the powers they are expressly delegated in the Constitution.  Government needs express authority to act, and when it acts pursuant to powers not delegated or oversteps powers that are intended to be limited, then those acts have no legitimacy and are not enforceable upon the people. That is the contract that the people have with the federal government, under the US Constitution.  Same goes for the states and the state constitutions.

So, the first question to ask is whether the particular federal law has a proper constitutional foundation.  All of our Founding Fathers agreed that any act that violates the Constitution is null and void and not a valid, enforceable law.  Our entire Constitution consists of limitations and a series of checks and balances. Our Founders talked at length about the checks and balances in the Constitutional Convention. They talked about the separation of powers and the jealous arrangement whereby each branch would jealously guard their own powers from the encroachment of any of the other branches. They would gladly do so to prevent one branch from becoming too powerful in the exercise of government and  too powerful over the other two branches.  Furthermore, our Founding Fathers build our government on a federal scheme. We are a federation of sovereign states and not a consolidation of people.  Our system is federal and not national.  In our federal scheme, as embodied by the Tenth Amendment, the precious balance of power and limitations imposed by the Constitution was intended to be kept in check by the tension presented by having two sovereigns – or Dual Sovereignty.  A “sovereign” possesses supreme power.  A sovereign state, for example, has the supreme power to legislate for its safety, security,  people, and best interests.  Under our system of Dual Sovereignty, the federal government is deemed to be sovereign (again, the Supremacy Clause) when it acts pursuant to its constitutionally limited and legitimate powers (17 or so in Article I, Clause 8, and about 21 total in the entire Constitution).  It is a limited sovereign.  The states, on the other hand, as articulated in the Tenth Amendment, retain and reserve the great bulk of remaining powers to legislate and regulate within their territories and are therefore sovereign with respect to those powers.  James Madison addresses the nature of the division of powers best in Federalist Papers No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.”

Even the design of the government itself was premised on the federalist scheme so that the States themselves would intimately provide a necessary check on the power of the federal government. At the Constitutional Convention in 1787, when James Madison initially proposed that the federal government be given a “negative” (ie, “veto” power over acts of the state legislatures that it deemed frustrated the goals of the government, the states successfully countered back with the exact opposite – a state “negative” over the federal government. In discussing the second branch of the legislature – the Senate – the delegates specifically talked about this branch providing an immediate “negative” (ie, a “veto” power) over the actions of government. The Senate was intended to be the physical presence of the States within the structure of the government, always able to protect their interests and protect their sovereign powers.  (Of course, this notion of a state “negative” is the basis of the doctrine of nullification). The states provided a federal balance in other aspects as well.

In Federalist No. 45, Madison explained:

“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”

In Federalist No. 78, Alexander Hamilton articulated the danger in overstepping the bounds of federal power and federal authority:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Recently, Tennessee’s Attorney General, Robert Cooper, wrote a legal opinion stating that Tennessee’s    proposed piece of legislation, SB0250 (“An Act to amend Tennessee Code Annotated, Title 4,

Chapter 54, relative to the Tennessee Firearms Freedom Act”), is unconstitutional because it violates the Supremacy Clause of the US Constitution.  SB0250 was written to expand and amend the Tennessee Firearms Freedom Act to address federal actions in the state. Specifically, the bill adds the following section to the Firearms Freedom Act:

(a) The general assembly declares that any federal action prohibited by this chapter relating to firearms, firearms accessories or ammunition, whether made in Tennessee or not, is not authorized by the United States constitution and violates the restrictions contained therein and is hereby declared to be invalid in this state; that said federal action shall not be recognized by this state; and that said federal action is rejected by this state and shall be null and void and of no effect in this state.

(b) Any federal action shall be deemed an intentional violation of state sovereignty and shall be unenforceable within the borders of Tennessee if the federal action does or attempts to:

(1) Infringe on, ban, regulate, or restrict state government, local government or civilian ownership, transfer, possession or manufacture of a firearm, a firearm accessory or ammunition in this state;

(2) Require any state government, local government or civilian owned firearm, firearm accessory, or ammunition in this state to be registered or tracked in any manner; or

(3) Impose federal taxes, fees or any other charges on any state government, local government or civilian owned firearm, firearm accessory, or ammunition that are payable to any government entity.

(c) No public official, employee, or agent of this state or any of its political subdivisions shall:

(1) Act to impose, collect, enforce, or effectuate any penalty in this state that violates the public policy set forth in this section; or

(2) Cooperate with or assist with the enforcement of federal action prohibited by this chapter.

Attorney General Cooper wants the legislature and the People of the Tennessee to believe that the following federal acts and constitutional and therefore supreme:  (i) a ban on firearms; (ii) tracking of ammunition; (iii) federal taxes on firearms and their accessories;….

Where exactly in the Constitution did the states delegate the power to regulate firearms?  It doesn’t. What the States did demand, on the other hand, was the Second Amendment, which states that: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Some argue that the federal government has some regulatory authority under the Commerce Clause, but that argument would be wrong.  Again, we have the Second Amendment (and in fact, the Bill of Rights in general).  The Preamble to the Bill of Rights states the intention of the States in adopting them:  “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.”   As we all know, the States refused to ratify the US Constitution until a Bill of Rights, proposed by the States themselves, was added.  So we see that the Bill of Rights, and in this case the Second Amendment, puts further restrictions on the federal government. These “declaratory and  restrictive clauses” further restrain the government in the exercise of their delegated powers.  As an example, Congress was delegated the power to regulate interstate Commerce (“to make regular”).  After the Bill of Rights was added, the government was prohibited from using the Commerce power to infringe on the right of the people to have and bear arms.

The Second Amendment states specifically and succinctly – “the right of the people to have and bear arms shall not (must not) be infringed.”  There simply is no wiggle room.  The federal government, therefore, has no authority to regulate in this area and thus, the federal acts mentioned above are not constitutional.

Does the Federal Judiciary Have Exclusive Power to Make Determinations of Constitutionality? –

The second question to ask is which branch/tribunal/entity has the exclusive power to make the determination of constitutionality.  The Supreme Court, in Marbury v. Madison(1803) has delegated that power to itself.  It was not delegated to the federal courts in the US Constitution.  Nowhere in Article III is the Supreme Court given “exclusive” jurisdiction.  Alexander Hamilton wrote about the weight to be afforded the federal judiciary in Federalist No. 78:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

If there should happen to be an irreconcilable variance between the two (the legislative and the judicial branches), that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Under the contractual nature of the Constitution (ie, the States negotiated the terms of the Constitution and were its signers, thus agreeing to be bound by its terms including the surrender of some of their sovereign power which is the necessary “detriment” or “consideration” which contract law uses to find a valid contract), the states are the legitimate parties and are therefore in the legal position to explain the terms under which they signed.  In other words, the States are in the proper position to define the extent of the powers that they delegated to the federal government.  The government itself is not a party to the contact and in fact, is its creation.  And as the plain words of the Constitution express and the Federalist Papers explain, the right to be the exclusive interpreter of the Constitution was not delegated to the Supreme Court (or the federal courts in general).

Mr. Robert Cooper, the Tennessee AG, mentions the possibility that the federal acts might be unconstitutional.  At the end of the brief he filed, Cooper wrote: “While the bills themselves declare that certain federal firearms regulations are unconstitutional, that determination  rests with the federal judiciary and not a state legislature.”  He rests his assertion on the Marbury v. Madison case, which was mentioned above.  But he misconstrued Chief Justice Marshall’s ruling.  Chief Justice Marshall merely asserted in that case that the Supreme Court CAN, in fact, nullify an act of Congress by declaring it unconstitutional. But nowhere does he assert that the Court has exclusive authority to rule on constitutionality.  The discussion of this topic is addressed below:

“The people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”

The Marbury v. Madison case sent up a red flag to Thomas Jefferson who was perhaps our most important and prolific Founding Father.  In reaction to Chief Justice Marshall’s opinion in Marbury, Jefferson grew terribly suspicious of the Supreme Court and warned that judicial review would lead to despotism. He wrote:

“The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

Attorney General Cooper also cited Cooper v. Aaron, a Supreme Court case from 1958 which held that state government officials are bound to comply with Supreme Court rulings and court orders based upon the Supreme Court’s interpretation of the Constitution. This case addressed the remnants of the Jim Crow South and Arkansas’ refusal to enforce the desegregation mandate of Brown v. Board of Education (Cases I and II, 1953 and 1954, respectively).  Cooper referenced Cooper v. Aaron to assert the supremacy of the federal judiciary and to affirm that its rulings cannot be challenged by any state.

Again, Cooper v. Aaron rests on a fallacious or bastardized interpretation of Marbury. Such a notion obliterates the notion of a constitutional system and makes the Supreme Court the sovereign.  I shouldn’t even have to point out the absurdity of the Court making itself supreme.

Edwin Meese, Attorney General under President Ronald Reagan, said this about theCooper decision: “The logic of Cooper v. Aaron is at war with the Constitution, at war with the meaning of the rule of law.”  We need look no farther than the Dred Scott case (1857).  The Dred Scott decision not only denied even free blacks citizenship but went on to declare all those of African descent to be inferior and suitable only to serve others. To see the inherent flaw in this idea of judicial supremacy would be to accept that the Dred Scottdecision was the legitimate law of the land.  Abraham Lincoln would not accept it.  In response to the ruling, he said: “If the government, upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that imminent tribunal.”

If we accept the misguided notion that the Supreme Court is the final interpreter of the meaning and intent of the Constitution, then we have to accept that the decision in Dred Scott is the law of the land (which is still good Supreme Court jurisprudence by the way since it was only overturned legislatively, if you will, by constitutional amendment).  The justices in that case didn’t interpret the Constitution; rather, they used the bench for a most insidious function – to make social policy.  Dred Scott was a slave who traveled with his slave master from a slave state to a non-slave state.  He then challenged his bondage.  The question, therefore, before the Court was not only whether he should be considered free but whether he even had the legal right (as a black man) to challenge his slave status.  Justice Taney wrote the opinion:

“We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognized as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.”

When the Supreme Court itself acts outside and above the bounds of constitutional power, which party can declare such?

That was a problem that Thomas Jefferson’s addressed  in 1804: “The Constitution meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

The fact is that the men who drafted our founding documents – James Madison and Thomas Jefferson – did not subscribe to the notion that only the federal courts could determine constitutionality.  Jefferson wrote this: “The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government;….  that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”  [Resolutions of 1798].

James Madison wrote: “The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”  [Report of 1800]

The Impact of the American Revolution on the Drafting and Intent of the Second Amendment –

A third inquiry might be a look at the (historical) events that shaped and guided the Founders and the drafters of the Second Amendment.

As we all remember from our early American history, the Boston Tea Party prompted a very strong response from the King of England.  It would be the series of intolerable acts known as the Coercive Acts which would offend so greatly the colonists notion of freedom that independence became the only solution.

All of the particular provisions of the Coercive Acts were offensive to Americans, but it was the Quartering Act and the possibility that the British might deploy the army to enforce them that primed many colonists for armed resistance. The Patriots of Lancaster County, Pennsylvania, resolved: “That in the event of Great Britain attempting to force unjust laws upon us by the strength of arms, our cause we leave to heaven and our rifles.”

The Royal Governor of Massachusetts, General Thomas Gage, had forbidden town meetings from taking place more than once a year. When he dispatched the Redcoats to break up an illegal town meeting in Salem, 3000 armed Americans appeared in response, and the British retreated. Gage’s aide John Andrews explained that everyone in the area aged 16 years or older owned a gun and plenty of gunpowder.  They could not tolerate this.

Military rule would be difficult to impose on an armed populace. Gage had only 2,000 troops in Boston. There were thousands of armed men in Boston alone, and more in the surrounding area. Gage’s response to the problem was to deprive the Americans of gunpowder.

Although colonial laws generally required militiamen (and sometimes all householders, too) to have their own firearm and a minimum quantity of powder, not everyone could afford it. Consequently, the government sometimes supplied “public arms” and powder to individual militiamen. Policies varied on whether militiamen who had been given public arms would keep them at home. Public arms would often be stored in a special armory, which might also be the powder house.

Before dawn on September 1, 1774, 260 of Gage’s Redcoats sailed up the Mystic River and seized hundreds of barrels of powder from the Charlestown powder house.  The “Powder Alarm,” as it became known, was a serious provocation. By the end of the day, 20,000 militiamen had mobilized and started marching towards Boston.  In Connecticut and Western Massachusetts, rumors quickly spread that the Powder Alarm had actually involved fighting in the streets of Boston, but accurate reports were provided just in time and war was temporarily averted.  The message, however, was unmistakable: If the British used violence to seize arms or powder, the Americans would treat that violent seizure as an act of war, and would fight.

Tension continued to grow as the British continued to seize firearms and gunpowder and block the importation of arms and ammunition to America in an effort to disarm the rebellious colonists.

On March 23, 1775, Patrick Henry would give his famous fiery speech to the Virginia legislature, which had to meet in secret at St. John’s Church in Richmond because the British were clamping down on their rights to govern themselves. In that speech, he delivered those famous words: “Give Me Liberty or Give Me Death!”  What was the reason for those words?  Well, at the time, King George had declared all 13 North American colonies to be in a state of open rebellion. Lord Dunsmore, the Royal Governor of Virginia, had ordered all the gunpowder in Williamsburg seized and stored aboard his ship anchored in the Virginia harbor, to keep it out of the hands local patriot forces. In his speech, Henry argued that the British plainly meant to subjugate America by force. Because every attempt by the Americans at peaceful reconciliation had been rebuffed, the only remaining alternatives for the Americans were to accept slavery or to take up arms. And so he urged that Virginia organize a militia to stand up to the British.

In just 3 weeks, the American Revolution would begin.

On the night of April 18, the royal governor of Massachusetts, General Thomas Gage was ordered by King George III to suppress the rebellious Americans, had ordered 700 British soldiers to confiscate weapons stored in the village of Concord and capture Sons of Liberty leaders Samuel Adams and John Hancock, who were both reported to be staying in the village of Lexington.

As word of General Gage’s intentions spread through Boston, it prompted the patriots to set up a messaging system to alert the countryside of any advance of British troops. Paul Revere arranged for a signal to be sent by lantern from the steeple of North Church – one if by land, two if by sea.  On the night of April 18, 1775 the lantern’s alarm sent Revere, William Dawes and other riders on the road to spread the news. The messengers cried out the alarm, awakening every house, warning of the British column making its way towards Lexington. In the rider’s wake there erupted the peeling of church bells, the beating of drums and the roar of gun shots – all announcing the danger and calling the local militias to action. In the predawn light of April 19, the beating drums and peeling bells summoned between 50 and 70 militiamen to the town green at Lexington. As they lined up in battle formation, they heard the sound of the approaching Redcoats. Soon the British column emerged through the morning fog.  At Lexington Green, one eyewitness report claims that British Major Pitcairn ordered the Bostonians to “Lay down your arms, you damned rebels, or you are all dead men.”  At that moment a shot was fired. It may very well have been accidental. Nonetheless, hearing the shot, British troops fired upon the small group of militia, killing eight men and wounding ten more. The militia then retreated into the woods.  And so started the first battle in the American Revolutionary War.

What transpired after the day of “the shot heard ’round the world” was perhaps more significant in some respects. That event was Gen. Gage’s attempt to confiscate the arms of all the inhabitants of Boston. Disarming the militiamen in the countryside had a plausible purpose—the Crown was the “legitimate” government and the militiamen were engaged in rebellion. But to disarm every peaceable inhabitant of Boston without them having committed any unlawful act or threatening any transgression was conclusive evidence to the colonists, including many not yet committed to fight for either side, that their fundamental rights as Englishmen were being destroyed.

What happened in the days leading up to skirmish on Lexington Green, when the British sought to disarm the colonists, and what happened in the days following Lexington and Concord, with the wholesale confiscation of firearms from the people of Boston, remained fresh in the minds of our Founders and framers.  It would have a profound impact on them and play a major role in the construction and adoption of the Second Amendment.

The Meaning of the Second Amendment –

And a fourth question to ask is what was the meaning of the Second Amendment when it was passed (because each of our first ten amendments holds a special place in America’s understanding of ordered liberty as the nation was congealed in 1788-89). The following are crucial points to be considered:

(a)  The 2nd Amendment to the Constitution of the United States reads as follows, “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 amendment, as written, is very clear.  First the right to keep and bear arms is not subject to any qualification, conditions, or degrees. Secondly, the right shall (ie, “must”) not be infringed. What is it about the phrase “shall not be infringed” that the government and critics fail to understand?  Since the amendment is a prohibition on government, it is a restraining order on government.  Henry St. George Tucker, a lawyer who put his career on hold to fight the American Revolution, set out in 1790 to write an American edition of Blackstone’s Commentaries on the Law of England.  In 1803 he completed and published it.  Commonly referred to as “American Blackstone,” it was the definitive treatise on American law and became essential reading for every lawyer of the day.  In explaining the American right to keep and bear arms, Tucker wrote these words:  “The right of the people to keep and bear arms shall not be infringed and this without any qualification as to their condition or degree, as is the case in the British government.”  In the appendix to his text, Tucker provided a fuller explanation of 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 colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction….”

(b)  The Preamble to the Bill of Rights, as with any preamble, states the intent and purpose of the particular amendments. 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.

         RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution..

On December 15, 1791, Virginia became the 10th of 14 states to ratify, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal.

(c)  The Second Amendment doesn’t grant rights; it recognizes rights. The Second Amendment, which embodies the most fundamental right of self-defense, self-protection, and self-preservation, was considered by our Framers as obvious, “natural,” and a “self-evident truth.”  The Declaration of Independence articulates clearly that while individuals have the inalienable right of Life, Liberty, and the Pursuit of Happiness, they also have the natural right to defend them. In fact, it is precisely the primary role of government. The Declaration states: “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…”     According to the Declaration, the rights of self-defense, self-protection, and self-preservation are as fundamentally and inherently endowed as the rights to Life, Liberty, and the Pursuit of Happiness.

The framers, tasked with defining the foundation of our new nation, were immersed in the prevailing republican thought of the day, as articulated in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, Jefferson, and others, which discussed “natural rights” in some detail.  Others, known as the anti-Federalists, argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution.  Alexander Hamilton summed the position well in Federalist Papers No. 28: “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”  [http://constitution.org/leglrkba.htm%5D

 (d)  The Second Amendment also recognizes the right, power, and duty of the people to organize into militias and defend their state.  Indeed, at the time the Second Amendment was adopted, it was understood that the people were the militia. George Mason said it best during the debates in the Virginia Ratification Convention on June 16, 1788: “I ask, sir, what is the militia? It is the whole people..” [See Elliot’s Debates, Vol. 3]  In Federalist Papers No. 29, Alexander Hamilton indicated that a well-regulated militia is the people in a state of preparedness. Tench Coxe, in his article “Remarks on the First Part of the Amendments to the Federal Constitution,” (written under the “A Pennsylvanian”) in the Philadelphia Federal Gazette, June 18, 1789, explained: “Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article [the Second Amendment] in their right to keep and bear their private arms.”

And what was the purpose of a state militia?  Our Founding Fathers understood an armed citizenry was necessary for more than just protecting the state’s security and interests. US Rep. Elbridge Gerry (Mass) spoke on this topic when debating the Second Amendment from the floor of the Congress after James Madison proposed the draft of the Bill of Rights: “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”  [See Annals of Congress at 750; August 17, 1789]  George Mason repeated the same admonition in the Virginia Ratification Convention (June 1788): ” … to disarm the people – that was the best and most effectual way to enslave them.”

And Noah Webster effectively articulated the principles underlying our Constitution and Bill of Rights in his publication An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).  He wrote: “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, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.” But perhaps no one is more qualified to explain the intent of the Second Amendment than Thomas Jefferson who was the man responsible for finally convincing James Madison to draft them. Jefferson wrote: “No Free man shall ever be debarred the use of arms.” In 1787, he wrote: “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.” [Letter to William Stephens Smith; See Jefferson’s Papers 12:356]  Even Supreme Court Justice Joseph Story understood the purpose of an armed citizenry (and hence the intent of the Second Amendment): “The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation of power by rulers. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally … enable the people to resist and triumph over them.”  [Commentaries on the Constitution of the United States, p. 3:746-7, 1833

(e)  While the U.S. Constitution does not adequately define “arms,” we have a clear understanding of its historical context.  The Federalist Papers and other writings of the Founding Fathers and their contemporaries mention “arms” to suggest it has a rather broad definition. For example, in Federalist No. 29, Alexander Hamilton emphasized the deterrent effect of a citizen militia against the U.S. Army: “If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” A reading of Federalist No. 26 will help us understand that when our Founders envisioned the fundamental right of individuals to take up arms against an oppressive government, they understood that sometimes the oppressor was protected by state-of-the-art weaponry (as were the British forces). In other words, the body of citizens must be armed and disciplined accordingly to be a formidable force against a tyrannical government. When the Second Amendment was adopted, the common understanding was that “arms” comprised those weapons that could be carried and discharged/operated by hand, including muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common-law definition reads “light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare.” That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons.  It would not, however, include heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. The standard, therefore, has to be that “arms” includes weapons which would enable citizens to effectively resist government tyranny.  The rule should be that “arms” includes all light infantry weapons that do not cause mass destruction.  If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then “arms” must be interpreted broadly.  [http://constitution.org/leglrkba.htm%5D

(f)  Nowhere in the Constitution of the United States is the federal government vested with the authority to impose acts, laws, executive orders, rules, or regulations relating to civilian firearms, firearm accessories, or ammunition. The right to “keep and bear arms” is absolute and not subject to any qualification, conditions, or degrees.  [Although some may argue that the government has some regulatory power under the Commerce Clause, the Bill of Rights was adopted as a further limitation on this power; See (b)]  Samuel Adams emphasized this point in Massachusetts’ Ratification Convention (January 1788): “That the said Constitution shall never be 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 peaceable citizens from keeping their own arms … ”  Thomas M. Cooley, renowned jurist (1824-1898), wrote in his text General Principles of Constitutional Law, Third Edition [1898]: “The right [to bear arms] is general. 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 explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon…. If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the 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 they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order.”

In light of the authority above, it would appear that all federal acts, laws, executive orders, rules or regulations tending to infringe upon the right of law-abiding persons to have and bear firearms, firearm accessories, or ammunition are in violation of the 2nd Amendment, as well as the 10th Amendment and Supremacy Clause, of the US Constitution.

The Heller and McDonald Decisions –

It just so happens that at this point in time, the Supreme Court has confirmed the original meaning of the Second Amendment.

The District of Columbia v. Heller (2009) and McDonald v. City of Chicago (2010) cases marked the first time in about 70 years that the Supreme Court was willing to consider the meaning of the Second Amendment.  For the first time, the Court was presented with the question of whether the Second Amendment protects an individual’s right to bear arms for private purposes.  In Heller, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self- defense. The Court based its holding on the text of the Second Amendment and its history, as well as applicable language in state constitutions adopted soon after the Second Amendment.

The McDonald case came to the high Court from the Seventh Circuit, where the panel of judges held that states had the right to enact gun bans because the Fourteenth Amendment did not require the states to respect the rights protected under the Second Amendment.  Luckily, the Supreme Court reversed the Seventh Circuit.  It held that, indeed, the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.  In analyzing whether a particular right protected in the Bill of Rights applies to the States through the Fourteenth Amendment, the Court has come up with a threshold determination and that question asks whether the particular right is one that is “fundamental to the Nation’s scheme of ordered liberty” or one that is “deeply rooted in this Nation’s history and tradition.”  If the Court determines that it is so, then the Court will declare that the particular right is appropriately applied to the states through the Fourteenth Amendment.  Based on the review done in Heller and the decision it reached, the Court in the McDonald case recognized that the right to self-defense was one such “fundamental” and “deeply rooted” right.  Justice Clarence Thomas went through a detailed analysis to explain just how deeply-rooted that right is.

Prior to the Heller case, the last case the Supreme Court heard on the Second Amendment was United States v. Miller, in 1938.  It was a questionable decision then and unfortunately, because of the Court’s doctrine of stare decisis (“that which has been decided”: otherwise known as court “precedent”), the Court was still bound by it.  Actually, the argument was never asserted in Miller that the Second Amendment protects the individual right to bear arm. Yet the Supreme Court nevertheless upheld a federal gun control law and said that the Second Amendment only protects arms that are reasonably related to the maintenance of a state militia.

Since that horrible decision, federal circuit and federal district courts have ruled on dozens and dozens of cases in which gun control laws were challenged under the Second Amendment and they have consistently read the Second Amendment to protect a state’s right to preserve a militia and have it armed…  but not as an individual right to bear arms for private purposes unrelated to militia services.  So, while the militia theory of the Second Amendment, or collective rights theory of the Second Amendment, had only been vaguely mentioned by the Supreme Court in Miller, it had become the dominant law of the land in the federal courts in the 70 years prior to Heller.

In the meantime, scholars began to study the Second Amendment and its history.  Over the years, much historical, academic, scholarly material were collected which completely undermined the argument that the Second Amendment protected only a state’s right to preserve a militia and not an individual’s right to bear arms. Over the last 30 years there has been literally a tidal wave of scholarship looking into the original meaning and purpose of the Second Amendment.  The overwhelming majority of studies have sided with view that our Founders sought to protect the individual’s right to bear arms for self-defense.  And it was this new-found understanding and appreciation of the Second Amendment that guided the Court’s decision in Heller and then McDonald.

In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” A district court judge dismissed the lawsuit. The US Court of Appeals for the D.C. Circuit, however reversed the dismissal and struck down provisions of the FCRA as unconstitutional. In 2008, the case (District of Columbia v. Heller) came before the Supreme Court.  The issue presented was whether the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense.  The Court held that it does and as such, the DC ordinance which banned the possession of handguns in the home was struck down as an unconstitutional violation of a fundamental and essential individual right.

In 2009, 75-year-old Chicago resident Otis McDonald took the initiative to protect himself from the increased threat of crime in his neighborhood of Morgan Park. Since buying a house there in 1971, he watched as the neighborhood fell into the hands of gangs and drug dealers. His lawn was regularly littered with refuse and his home and garage had been broken into a combined five times, with the most recent robbery committed by a man McDonald recognized from his own neighborhood.  An experienced hunter, McDonald legally owned shotguns, but believed them too unwieldy in the event of a robbery, and wanted to purchase a handgun for personal home defense.  But he was unable to do so under Chicago’s city-wide gun ban. Pursuant to the ban, all handguns were prohibited (after 1982) and all firearms had to be registered. In 2008, he joined three other Chicago residents in filing a lawsuit challenging the ban as an unconstitutional violation of the Second Amendment.  The case (McDonald v. City of Chicago) was heard by the Supreme Court in 2009.

The question presented to the Court was whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.  In other words, the Court was asked to determine whether the US Constitution protects the Second Amendment against infringement or violation by the States.  Writing for the majority, Justice Clarence Thomas answered in very strong terms that it does.

American Thinker gave an excellent presentation of the case: “The most important job of the government is the protection of its people. That protection involves their physical safety and the security of their property. It means providing police presence to deter criminals before they commit crimes and harsh penalties for offenders whose crimes were not deterred. The fact is that most crimes cannot be deterred because the bad guys don’t generally mug people in front of the officer on patrol. Since the police can’t be everywhere, people need a way to protect themselves.  And that was how Otis McDonald felt when he walked into a Chicago police station and applied for a .22-caliber pistol two years ago. As the lead plaintiff in the lawsuit challenging Chicago’s 28-year handgun ban, McDonald was a sympathetic figure: an elderly man trying to protect himself from violent hoodlums preying upon his neighborhood.  He was also a neighborhood activist, proposing alternative policing strategies to make his neighborhood safer; his efforts earned him death threats from local gangs.”

The Supreme Court was given statistics from the Chicago Police Department which showed that the City’s handgun murder rate actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country.  They were given statistics to show that guns increasingly end up in the hands of criminals, gang members, and others who are mal-intentioned.  It is also a statistical fact that legal gun owners are exponentially less likely to commit a crime.  Bob Weir, a former detective sergeant in the New York City Police offered his views on gun control laws: “We have often heard a scenario in which a law-abiding citizen, unable to wait for assistance any longer, took action against an intruder and lived to talk about it. One of the scariest scenes I can imagine is one in which I’m awakened in the middle of the night by strange sounds coming from another room of the house and I have no weapons to protect my family….  During my twenty years as a cop, I took a lot of guns off the bad guys, none of which were registered. How could they be? Bad guys aren’t allowed to have registered guns! Only good guys have that right. Hence, when you make gun possession illegal for the good guys, the bad guys will be the only ones with guns.”

It is also worth noting that in the weeks leading up to the decision, Chicago suffered a surge in gun violence, with between 26-55 shootings per week and many of them being fatalities.  Bob Weir commented: “We’ll never know if some of those lives would have been spared had the victims been armed. But one thing seems obvious: If the guys with illegal guns knew that the rest of the population was unarmed, they could kick down any door and have their way with the residents. The only thing stopping them now is the knowledge that many people have guns and are willing to use and capable of using them to protect their families. We’ve all heard tape recordings of people who dialed 911 as someone was breaking into their home only to be told that the police may be several minutes away.  In cases where the caller was armed, shots could be heard as the intruder gained entry and tried to attack the caller.”

Police will often joke that many street gangs are equipped with enough firearms to take on the Taliban. In New Jersey, a Trenton-area gang threatened war on the Trenton Police. They sent an anonymous letter to the Trenton Times warning that at the hour of their choosing, they would bomb the building. Eventually the Trenton police would uncover an incredible arsenal of weapons that the gang had compiled. No gun control law could have prevented that arsenal. Such laws only strengthen the black market. Furthermore, our law enforcement and criminal justice system has often proven inadequate to protect law-abiding citizens who become victims of crime and inadequate to disarm the thugs that roam freely throughout the country.

To make matters worse, the DC Court of Appeals had handed down a ruling in 1981 that should weigh heavily on anyone even contemplating giving up gun rights to the government. It held that a city has no legally enforceable duty to protect its citizens from crime. That case was Warren v. District of Columbia.  It involved three women who were living in a townhouse in DC. Under DC law at the time, they were forbidden not only to own handguns but also mace, pepper-spray, and other non-lethal tools of self-defense.  Late one evening in March 1975, two thugs broke into the townhouse and attacked the woman downstairs at the time. They began beating her and then raped here. The other two women, hearing the struggle, called 911 and were told that police were being sent.  As the transcript later showed, the dispatcher reported only that there was a domestic disturbance. The squad car that responded simply drove past the residence, didn’t observe any sign of a disturbance, and drove on his way. The women upstairs then called 911 again and were again told that help was on its way. This time, the dispatcher didn’t even bother to send out a radio call.  Believing their friend was dying, the women called down to the intruders, telling them that “Police are on their way!” Instead of fleeing, the thugs went upstairs and forced the women at knifepoint to the apartment below.  For the next 14 hours, the three women were held captive, raped repeatedly, beaten, abused, and forced to commit sex acts upon one another for the intruders’ entertainment. Luckily, the women were spared their lives.

The women sued the District of Columbia for failing to provide police assistance and lost. The DC Court of Appeals agreed and ruled that the city had no legal duty to protect its citizens, even when its employees have given assurances that help would be provided.  Under the ruling, the government is free from responsibility in protecting its citizens even as it is also free to ensure that they cannot protect themselves either.

The Heller and McDonald cases have undermined the government in one aspect of theWarren decision. The government cannot prevent law-abiding citizens from exercising their right to keep and bear arms for self-protection. The Supreme Court, in those cases, held that the right to own a gun (bear arms) is a fundamental right, one that is firmly rooted in our history and heritage, and as such, citizens cannot be denied this right by the federal government or by any State. But we are standing on the precipice of putting the government back in the exact position it was under Warren – absolved from responsibility to protect us and free to prevent us from protecting ourselves.

But permitting the government to condition, qualify, and regulate the right of self-defense will put the power back in the hands of criminals, will put law-abiding citizens at risk, and will set the country on the same path of government gun control that has defined the tyrannical regimes of Europe, Asia, and Africa.  The bottom line is that the measures are unconstitutional and the power to stand up to such unconstitutional measures lies with the States and with each state and local elected official and state and local civil servant who has taken a solemn vow to support and defend the US Constitution.  Unfortunately, as John F. Kennedy once said: “Those who make peaceful revolution impossible will make violent revolution inevitable.”

The American people are not going to stand by peacefully and allow their right of self-defense to be eroded. Government must serve the rights of the people.

References:
Tennessee SB0250 –  http://legiscan.com/TN/text/SB0250

Michael Maharrey, National Communications Director for the Tenth Amendment Center, addresses the arguments made by Tennessee Robert Cooper in his brief against SB0250 – http://www.youtube.com/watch?v=65o_vo8nUIU

The Intent of the Second Amendment –  http://constitution.org/leglrkba.htm

Federalist No. 45 –  http://www.constitution.org/fed/federa45.htm

Federalist No. 78 –  http://www.constitution.org/fed/federa78.htm

Marbury v. Madison, 5 U.S. 137 (1803)

Cooper v. Aaron, 358 U.S. 1 (1958)

Dred Scott v. Sanford, 60 U.S. 373 (1856)

McDonald v. City of Chicago, 153 U.S. 535 (Oct. 2009)

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

Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981)

Bob Weir, “Thanks to Otis McDonald and the Supremes,” American Thinker, July 3, 2010.

James Madison: Report on the Virginia Resolutions  (Jan. 1800)  –  http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

Thomas Jefferson: Resolutions Relative to the Alien & Sedition Act (November 10, 1798) –http://press-pubs.uchicago.edu/founders/documents/v1ch8s41.html

The Legal and Historical Roots of  the Second Amendment (video) –http://www.secondamendmentdocumentary.com/

The Police Have No Legal Duty to Protect Its Citizens (from the legal documentary “In Search of the Second Amendment”) –  http://www.youtube.com/watch?v=lb3rAglRsqU

Alo Konsen, “The Second Amendment Definition of ‘Arms’,” 2003.  Referenced at:http://brainshavings.com/the-right-to-keep-and-bear-what/

Publius Huldah explains why federal gun control laws are unconstitutional –http://publiushuldah.wordpress.com/2013/03/03/publius-huldah-shows-federal-gun-control-is-unlawful/

“Obama Gun Control Ban: Confiscate Firearms, NRA Claims,” Newsday New York, January 23, 2013.  Referenced at:   http://newyork.newsday.com/news/nation/obama-gun-control-plan-seize-firearms-nra-claims-1.4697883

“Here are Obama’s 23 Executive Orders,” Forbes, January 16, 2013 –  http://www.forbes.com/sites/rickungar/2013/01/16/here-are-the-23-executive-orders-on-gun-safety-signed-today-by-the-president/

The 23 Gun Violence Reduction Executive Actions:

1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

3. Improve incentives for states to share information with the background check system.

4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.

6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

7. Launch a national safe and responsible gun ownership campaign

8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

10. Release a DOJ report analyzing information on lost and stolen guns and make itwidely available to law enforcement.

11. Nominate an ATF director.

12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.

15. Direct the Attorney General to issue a report on the availability and most effectiveuse of new gun safety technologies and challenge the private sector to developinnovative technologies.

16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

18. Provide incentives for schools to hire school resource officers.

19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.

20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

22. Commit to finalizing mental health parity regulations.

23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

Reference:  http://www.forbes.com/sites/rickungar/2013/01/16/here-are-the-23-executive-orders-on-gun-safety-signed-today-by-the-president/