January 1, 2009

In Defense of Freedom: Part III

The 2nd Amendment:
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Writing this has been more difficult than I thought it might be. Of all the words in our United States Constitution, there are 27 that seem have caused more controversy and debate than the whole of the rest of the document.
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"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."
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For about the past two score years, there have been more pages published in debate of the 2nd Amendment than on any other several constitutional issues combined. Those few words have confounded many modern folk, but from my reading I have come to unerstand very well the Founders intent. From letters and published reports I find it evident the signatories to the Bill of Rights intended the 2nd Amendment to guarantee the right of the individual to possess firearms.

There are many today who do not interpret the 2nd Amendment to guarantee this right to the individual, but instead insist the intent was collective. In light of the following excerpts, taken from various letters and records, I fail to understand that interpretation.
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Quotes from the Founders:

“A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks”
--- Thomas Jefferson in a letter to Peter Carr, 1785
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One loves to possess arms, though they hope never to have occasion for them.
--- Thomas Jefferson in a letter to George Washington, 1796

“We established however some, although not all its [self-government] important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed”
---Thomas Jefferson in a letter to John Cartwright, 1824

“No freeman shall ever be debarred the use of arms”
---Thomas Jefferson writing in a draft of the Virginia State Constitution, 1776

“…the advantage of being armed which Americans possess over the people of almost every other nation... where the governments are afraid to trust the people with arms”
---The Federalist No. 46, authored by James Madison

“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws”
---John Adams, Defense of the Constitutions of the United States 475 (1787-1788)

“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 pretence, 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”
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution, 1787

"… if raised, whether they [federal government] could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"
--Theodore Sedwick, speaking at the Massachusetts Constitution ratifying convention, Jan. 09 - Feb. 06, 1788

“Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright 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”
---Tenche Coxe, Writing in the Pennsylvania Gazette, Feb. 20, 1788

“… whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them”
---Richard Henry Lee, Writing in the Pennsylvania Gazette, Feb. 20, 1788

“Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined”
--Patrick Henry, speaking at the Virginia ratifying convention, June 02 - June 26, 1788

“O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone...Did you ever read of any revolution in a nation...inflicted by those who had no power at all?”
--Patrick Henry, speaking at the Virginia ratifying convention, June 02 - June 26, 1788

“…when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor...”
---George Mason, speaking at the Virginia ratifying convention, June 02 - June 26, 1788

“…the people are not to be disarmed of their weapons. They are left in full possession of them”
-- Zacharia Johnson, speaking at the Virginia ratifying convention, June 02 - June 26, 1788

“That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power"
--Recommended language for the 2nd Amendment, offered by the Virginia delegation, June 26, 1788

"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 peaceable citizens, from keeping their own arms;…"
--Samuel Adams, as quoted by the Philadelphia Independent Gazetteer, August 20, 1789

“The whole of that Bill is a declaration of the right of the people at large or considered as individuals... it establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of”
---Albert Gallatin in a letter to Alexander Addison, Oct 7, 1789

“…conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded”
-- Roger Sherman, during House consideration of a militia bill, 1790

"When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless"
--Thomas Jefferson, letter to Wilson Cary Nicholas, Sept. 7, 1803

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed;..."
--Thomas Jefferson letter to Justice John Cartwright, June 5, 1824
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So, with the very men who authored this document stating time and again that the right belongs to the individual, I cannot understand the arguments to restrict firearm ownership by the individual. Even the American Civil Liberties Union (ACLU) has swayed to the argument that the right is collective. The ACLU has my admiration and support, but they are wrong on this issue.

The argument for gun control has roots in fear. Criminals have guns - - Criminals with guns are dangerous - - If we make rules prohibiting gun ownership we will control dangerous criminals.

If only it were that easy. Honest citizens will be disarmed by such laws because honest citizens abide by the law. Criminals, by definition, do not abide by the law. Instead of controlling crime, the effect is honest citizens denied the means to defend life and property.
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Summary:

Gun control legislation violates the right of the people as guaranteed under the 2nd Amendment, and is therefore unconstitutional. But it goes deeper than this. Denying the People the right to bear arms violates the political philosophy which spawned the Declaration of Independence, and denies the very heart of our Constitution. How might we guarantee “Life, Liberty and the Pursuit of Happiness” if our government removes from us the means of self defense?
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For Part IV of this series I was going to write in defense of the ACLU, and I may still do that in a week or so. They are on the opposite side in this 2nd Amendment debate, but I remain their friend. For all its warts, the ACLU has been the most stalwart defender of American liberty.

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15 Comments:

Rogue Medic said...

I decided my comments would not fit into this area, so I wrote In Defense of Freedom - some comments.

jeg43 said...

Good post. See comment at RM.

neyland-tarr said...

Even more fundamentally; denying the people the right to bear arms when we know that was the intent of the Second Amendment denies the very existence of stable Constitutional Law. It asserts that all Law is subject to moment-by-moment interpretation by a political elite, according to their notions of expedience.

Mule Breath... said...
This comment has been removed by the author.
Mule Breath... said...

Well. I have to say I am very pleased to see neyland-tarr drop in on my perofrmance. I've not before had the opportunity.

We agree, of course, on your interpretation of the Founder's intent at the time our Constitution was ratified, but the question will forever ramain whether the Founders meant it to be that way or if the document was meant to be fluid. Since none of them are around to address the conundrum, the argument between strict constructionalists and those promoting our Constitution as a living document will remain. Both arguments have merit, but in the end it will be determined by the philosophies of a select group of nine dudes (and/or dudettes) at any given time. In this regard, not much has changed since the time of Copernicus.

neyland-tarr said...

Mark me down as a grouch, but since the Founders wrote a process of Amendment into the Constitution, I would venture to suggest that they expected those who wanted to change things to use it. It can't be all THAT hard; the Anti-Saloon loons managed it.

Mule Breath... said...

Well... perhaps. The amendment process is a means of accomplishing goals, but the question is interpretation, not change. The question now, and forever will be...what did they mean?

Just like the Bible. Everyone has a different interpretation.

Roberta X said...

With all due respect, sir, it is not "just like the Bible:" I have yet to find anyone claiming the men who wrote the Constitution were dieties. Nor is every opinion that may be expressed about either work necessarily of merit -- people are free to utter and believe perfidious nonsense but I am not obliged to think it the equal of my own enlightened (or damfool) notions.

As for the "living document," A) there is indeed a clearly-defined process for amendment and B) no such well-defined process authorizing the Supreme Court to go reading between the lines. (The sole discretion to determine what the Constitution says is a power the Supreme Court arrogated to itself).

...What we have (vs. what appears to have been intended) is as you have described, the whims of nine. To the degree they are able to impose them on us, anyway....

Mule Breath... said...

Neither was the Bible written by dieties (Although their claim was divine inspiration, and some of our Founders made similar claims).

But my point was that regardless of intent, both documents are interpreted variously by men at different times. Men (and women) have done so for the same reason you claim as your own: enlightenment. They "know what is best."

The "living document" argument has a good many credible supporters, including such notables as Justice Louis Brandeis, Justice Oliver Wendel Holmes, and Judge William Posner of the 7th Circuit Court of Appeals. Even President Truman could be labled (there's that word again) as a proponent of flexability. While I disagree with the concept, one cannot deny that it happens. Our Constitution *is* interpreted variously by the courts. Even those who are supposed strict constructionists have inserted personal philosophy into court rulings. As Chief Justice Charles Evans Hughes said, "We are under a Constitution, but the Constitution is what the judges say it is."

perfidious nonsense is in the eye of the beholder.

Chas S. Clifton said...

As political scientist Gus diZerega points out here, it's not "liberals versus conservatives," it's "utopians versus conservatives."

Mule Breath... said...

Can't say that I find much room to agree with Gus. Some yes, but mostly no. I've read his stuff for some time, and always picture him clinging to the starboard edge of a flat Earth, stretching desperately for a grip.

In the article to which you point, Gus restates his thesis of conservatism as intellectual, and liberalism as ideological. I can't agree. Both are philosophies and are therefore ideologist in nature. Both philosophies are supported by great intellectuals and neither can be derogated as less thoughtful or brainy than the other. They are, however, polar opposites and have lost the concept of compromise.

Glad to see you commenting here. Thanks for the visit.

Roberta X said...

I was unclear -- it was the notion that just because everyone has a different opinion and is free to express it, all opinions are equal to which I was objecting. There are serious Constitutional scholars out there whose opinions I would rate far better than mine or yours.

I forget my penchant for self-mocking sarcasm is too-easily lost in print -- my "enlightened opinions" have only the rather dim light of my own soul to light 'em up. I'm still very fond of them -- they are, after all, my very own.

Mule Breath... said...

I would say then, Roberta, that we are much in agreement. On this blog I express my opinion (of which I am also fond), but I do so with a nod to minds vastly more knowledgable than my own.

Sarcasm and satire often do not play well in this medium. Still, *I" know what I meant. :~)

Rogue Medic said...

Roberta X,

I thought that you expressed yourself pretty clearly. You also made a point that nobody else has yet, in this series of posts - As for the "living document," A) there is indeed a clearly-defined process for amendment and B) no such well-defined process authorizing the Supreme Court to go reading between the lines. (The sole discretion to determine what the Constitution says is a power the Supreme Court arrogated to itself).

I expect that Mule Breath will get to that when he gets to number 9. When it comes to original intent, are they really applying the original intent of the Marshall Court, rather than the original intent of the Constitution? Several books worth of debate in that topic.

For example - What Secretary of State, through inaction, created much of the cause for Marbury vs. Madison to be heard by the Supreme Court? What ex-Secretary of State, now Chief Justice of the Supreme Court wrote the opinion on this case that basically authorized the Supreme Court's actions and established the most significant precedent? A lot of interesting stuff there.

Your term, "Perfidious Nonsense" is a good name for a blog, if it isn't already taken. :-)

Of course, I am never misunderstood, because I write with quintessential clarity.

Mule Breath... said...

It was the (perhaps vague) similarities between Marbury and current events that started me on this line of discussion.