Regarding the Second

The following is a transcript recovered from an old C4L blog that I maintained during my heady days as a minarchical statist. Originally published on 20-April-2009

Table of Contents

1 Regarding the Second

I've been avoiding this topic because it's so hard to do right. It's a very sensitive subject – especially for us because as members of the Campaign for Liberty, we must closely guard our reputations and ensure that we cannot be confused for something we're not. So before I go much further with this, let's lay a few ground rules:

  1. Violence sucks. I don't like it and I don't encourage it. Ever.
  2. I am not a secessionist. I've said it before but it bears repeating. I like the Union.
  3. I love the Bill of Rights. All of it. All ten of the amendments. We cannot disregard any one of those amendments and consider ourselves proponents of Liberty.

When the Constitution was being debated, the Federalists argued that there was no need for a Bill of Rights. It seems absurd to us today that anyone could even consider a Constitution without one. But I've grown to understand the Federalist argument wherein Alexander Hamilton says in Federalist 84:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Basically, he's saying that if you tell Congress "you can't stifle the freedom of the press," you propose a problem because nothing in the original delegated powers of the Constitution said that they had authority over the press in the first place. Why bother telling them they can't do something when you've already given them a specific list of things they can do? If they stick to that list, there's no reason to number the myraid of things that are not on that list.

Like the kid who spills buckets of paint on the living room furniture who then defends his actions by saying "well you didn't say that I can't dump paint on the couch," the government would be mislead to believe that their power was limitless except when specifically restrained. Then, according to Hamilton, you might have a Congressman saying: "The Bill of Rights doesn't say you have a right to choose the color of socks you wear so we're writing a law that regulates sock color" (hat tip to G. Edward Griffin there).

That's precisely what happened with the passage of the National Firearms Act of 1934 and subsequent court case of U.S. v. Miller in 1939. The defendant tried to argue that the Second Amendment protected his right to own a short-barreled shotgun which the Supreme Court found to be untrue. The SCOTUS ruled from the understanding that the Second Amendment protected the right to keep and bear arms inside the context of militia service and that a shotgun with a barrel less than 18 inches of length was not characteristic of the kind of weapon you'd bring when called to arms.

Many people who favor the idea of private ownership of weapons may feel threatened by such a ruling. For me, it's a somewhat bitter-sweet thing.

On one hand, the Court's opinion left room for the private ownership of weapons that were characteristic of military service. There is reason to believe that some semblance of understanding still remained in the population and in the government about what a militia was: The people at large and not the National Guard. It was true that if the Imperial Japanese were to come tromping onto American Soil and the militia was called out, that people were unlikely to bring a short-barrelled shotgun to the fight. This ruling meant that the Supreme Court may have recognized Miller's right to keep a Springfield M1903 or even the more modern M1 Garand because they were precisely the kind of weapon you would bring to military service at that time and neither was restricted from ownership by the NFA34.

On the other hand, it also meant that the government could claim to have power to regulate things that were not specifically applicable to the practices of a body martial. A short-barrelled shotgun may have served to defend a home better with its ability to get around corners easier and present faster against sudden threats. The act of defending one's home from a prowler was not specifically mentioned in the Second Amendment and thus, deemed irrelevant to its protections -- just as Hamilton cautioned above.

The definition of a militia has never been ambiguous for anyone who bothered to look.

A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms.

  • Richard Henry Lee, 1788

This was obviously the original meaning of the word "militia" in 1792 wherein Congress declared:

That every citizen, so enrolled [in the militia] … shall, within six months thereafter, provide himself with a good musket or firelock … or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service…

  • From the Militia Act of 1792, emphasis my own

Note that Congress said a militia member was supposed to bring his own weapon, ammo, and gear. He wasn't going to get his gun issued to him. The very same generation that ratified the Bill of Rights did not believe that there should be a disparity between the arms kept and borne by the average Joe and those kept and borne by those who protected the State from foreign invasion.

Such an idea was the very premise that many federalists exhibited when they argued for the Constitution's ratification. As seen in Tench Coxe's publication in the Pennsylvania Gazette, February 20, 1788:

Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.

Militaries have since implemented the use of weapons that were restricted to the public by the NFA but the people continued to be barred from their posession. Rather than confront the reality of the Supreme Court's findings, that the right to armament was related to the maintainence of a military made up of "all men capable of bearing arms" the government instead pretended that the state could make claim to a right which the people could not.

A far cry from a "government of the people, by the people, for the people," it became a government over the people where the very posession of arms precisely following the spirit and letter of the Second Amendment required special dispensation in the form of licensing. Eventually, the "terrible implements of the soldier" became unique to the soldier and the soldier became distinct from the farmer. The American birth-right was consigned to another wanton betrayal of the spirit of the Second Amendment: The army.

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.

  • Elbridge Gerry, 1789

A lot of people today seem to think that Monarchy was the great evil to rebel against in 1776 – but there were actually many American people who professed loyalty to their king. Even those who were compelled to reluctantly denounce the Crown and claim independence freely admitted that an army, being an entity separate from the general public, was therefore a perpetual threat to the same.

Thus we see that part of the intent of the Constitution, even before the Second Amendment was introduced, was not only to prevent disparities in firepower found between the general public and the military, but to absolve any difference found between the general public and the military whatsoever.

Founders of our country believed that all men were created equal and that this equality necessitated equal sense of responsibility for peoples' security. If your life was threatened by ravenous Indians, it would be pretentious to assume that someone else had to risk his life and fight those Indians for you. It's your life, you defend it. It wouldn't matter if you were a university professor with three PhD's or a cobbler who was barely able to count to twenty barefoot, your lives were of equal value and thus, you shared equal responsibility to defend yourselves.

This very concept was all over the classical works which made up a lot of the educational material of the time:

The Nation that makes a great distinction between its scholars and its warriors will have its thinking done by cowards and its fighting done by fools.

  • Thucydides, 5th c. BC

Assertions that standing armies are unacceptably dangerous are so abundant in the documents found from the Union's establishment that it really astounds me how many people are so accepting of it today. Many presume that we need people filling boots with foreign sand around the clock. However true that may be, we have to ask ourselves how much freedom we're really willing to sacrifice for the convenience of having other people ready and able to die for our safety.

Would a president be capable of waging undeclared war if he had no army ready to deploy? Would he be able to afford huge torture camps if the people and their representatives in Congress were unwilling to finance a superfluous military body?

Would we see an army as necessary if we were all trained, disciplined and equipped in a manner that would make us formidable to any would-be usurper? If we did render the existence of a standing army redundant and obsolete, what tools of oppression would be left for politicians who hold obvious contempt for the rule of law?

Of course, we cannot disregard the changes technology has made to the face of warfare. There are big guns that you can't realistically keep in your home or municipal armory as the militia of the 18th century did. But this is part of what the Federal Government exists for: Maintainence of a navy was specifically reserved to the US and states were prohibited from keeping ships of war. For the same reasons, it seems reasonable that the federal government maintain an air force. There are big guns, capable of shooting across entire states or even leveling entire states. Weapons who's effects would cross state borders seem to be, naturally, something under the purview of the Federal Government.

Even then, it would be hard to invade and occupy foreign countries and restructure them in an imperialistic fashion without the traditional boots on the ground.

With these thoughts in mind, I feel that many misunderstand what the Second Amendment really is. By the time we get to the "Nazi-inspired" "Gun Control Act" of 1968, and the ironically-named "Firearm Owners Protection Act" of 1986, or the hillariously silly "Assault Weapon Ban" of 1994, a lot of the debate seems immaterial to me. At that point, they were just desecrating the corpse of armament.

Of course, it has nothing to do with hunting game or sporting of any kind. Like the rest of the Constitution, the Second Amendment is obviously about providing a check against government power. But I'm not convinced that it is, in its entirety, about "rushing tumultuously to arms" to shoot us some fascists, either. It's not specifically or even peripherally about defending your home from meth-heads (in fact, I would argue that the 9th amendment is the only refuge for your right to home defense. "Life, liberty and the pursuit of happiness" are also not listed in the BoR).

The Second Amendment is not even confined to matters of equipment, either. A militia requires training and discipline in order to sufficiently bear arms for the security of a free State – and yet, we find many people in government decrying the evils of "paramilitary exercises."

Maybe I'm just totally off my rocker and I'm the one who doesn't understand what the Second Amendment is. But it seems to me like the entire concept is already dead and all that we've got left is some guns.

Date: 2012-09-22 09:49

Author: Anthony "Ishpeck" Tedjamulia

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