Last
month, Federalist contributor Benjamin
Dierker dismissed Justice John Paul Stevens’ (ret.) imprudent
suggestion that the
Second Amendment should be repealed altogether. Dierker argued that the natural
right to self-defense and the Ninth Amendment render repeal of the Second
Amendment irrelevant in a properly functioning America.
But is this
really true?
The natural
right of self-defense does not protect gun rights.
The natural
right to self-defense, recognized and respected by long-standing legal
tradition, does not provide a catalogue of weapons for use in personal defense that ought never to be
restricted by law. It only provides a basis for the
use of whatever means were circumstantially available—and allowed by law—to one person’s reasonable defense against an
imminent threat of significant bodily injury or death. It does not validate an a priori right to own, carry or wield a
gun. Legal officials determine after the fact if a person defended himself
reasonably under the circumstances whether he used a gun, a knife or his bare
hands. More importantly, one person exercising his natural right to
self-defense does not provide for “the security of a free state”, but for the
security of an individual. This is no minor point. Every modern Englishman has
a legal (and natural) right to defend himself and his property against
aggression; yet, few Americans would call England a “free state” because no
Englishman has the fundamental right to own, carry, or wield a gun or even a
knife—only the privilege to do so as granted, limited, or withheld by
government fiat.
However,
ensuring the “security of a free state” simultaneously secures each person’s
right to defend himself because securing the good of the whole necessarily secures the good of every
part within that whole. A citizen cannot secure his community without securing
his own house simultaneously as a constituent part of that community, but he
can secure his own house to the detriment of his community’s security.
Only the
Constitution, correctly construed, provides legal protections to natural rights.
The idea of a
properly functioning America would seem to imply that every citizen and
representative respects, obeys and enforces every law, including the Second
Amendment, and that patriots will meet any disregard for the law with legal,
political, or, if necessary, physical force. The Founders composed laws subordinated to "the Laws of Nature and of Nature's God" to
combat man’s natural temptation to abuse power. And they surrounded those laws
with double guards in the Bill of Rights, not one provision of which is
expendable. Repealing the only protective provision declared to be “necessary
to the security of a free state” should be unthinkable under any circumstances,
let alone in an ideal American society; yet, well-meaning advocates on both
sides still discuss—and what is worse, litigate, lobby and legislate—in
unfeigned ignorance of the Amendment’s meaning and relevance.
Construing
the Constitution, or any part of it, requires one to interpret the words in the
“natural sense” that the men who framed them and the people who adopted them
would have understood them at the time the Amendment was written. “Natural
sense” does not mean “colloquial”; rather, it gives precedence to any relevant legal definitions that essential terms
may have had at the time. This is the heart of “strict construction”.[1] Given that
rubric, the plain legal meaning of the Amendment absolutely controls this
otherwise confused debate.
Unfortunately,
that plain meaning has been paved over, largely with the asphalt of good
intentions.
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.
Most
people—including professedly "textualist" Supreme Court justices—are content to divide the
Amendment’s text somewhere near the middle and to set each half against the
other. Justice Antonin Scalia in District
of Columbia v. Heller divorced the use of firearms as part of one’s service
in the militia from an individual's use of arms for lawful purposes not connected
with militia service, essentially separating the right to use guns for lawful
personal aims from the right to defend one’s polity.
Heller contradicts the “natural sense” of “[a] well regulated Militia”.
If the “natural sense” of any constitutional word requires that
any relevant contemporaneous legal definition must take priority, then it is of paramount importance to discover whether a given term or phrase had been legally defined by the time the Constitution was written. The idea of
“a well regulated Militia” was not an innovation of the Founders. It was a
long-standing, statutorily defined, legal entity requiring persons to ensure
the political welfare and physical defense of their communities. Generations of
colonists, reaching back to the earliest days
of Plymouth, had been
subject to the ubiquitous statutes requiring each citizen—unless specifically
exempted for public duties or conscientious objections—to acquire
and maintain in his home a rifle or musket with shot and powder, and to appear on select days armed and accoutred with the same, or to pay a fine for any defect. Moreover, these
colonists had served their militias not only in their local communities, but
also with those militias in the field both with and against English soldiers.
In other
words, the historical reality of “a well regulated Militia” does in fact define the “natural sense” in which the
Amendment must be construed. The constitutions of the thirteen
original States confirm this interpretation. They express not only the vision
of the federal Framers but also the vision of their counterparts in state
legislatures who had to consider that text and its meaning carefully. Each State
adopted language similar to that expressed in Virginia’s Declaration
of Rights (Article XIII):
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; and that, in all cases, the military should be under strict
subordination to, and be governed by, the civil power.
The “well regulated militia” is not contrasted with the
“right of the people to keep and bear arms”; rather, the “well regulated
militia” is identified as the “body
of the people, trained to arms” and opposed to “standing armies” which “should
be avoided as dangerous to liberty”. Any person apprised of the arguments
before the Federal Convention or before the State ratifying conventions would
have appreciated this crucial distinction. How could he do otherwise? He was a
militiaman, and he had seen written on the bloody fields of New York,
Massachusetts and Virginia the principle—known to others by a careful study of
history—that a standing army was a means to a single end: usurpation of power,
that is, tyranny.
It is
no mere coincidence, then, that the militia is mentioned in Article I § 8 clauses 15 and 16 of the federal Constitution.
The Congress shall have Power...
To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining,
the Militia, and for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress[.]
The Founders expected that the militias of the several
states—not the military—would be ready to perform these tasks on a national scale whenever they
might be called into federal service. State and local governments would keep
their militias ready to perform those federal duties in addition to whatever
duties served a State or community’s particular needs. At bottom, then, the militias are
the primary defense mechanism for—the necessary means of securing—a free state.
They secure public order by executing the law; put down domestic violence
against the rightful authority, whether that violence issued from an unruly
populace or from a usurpatious and tyrannical government; and repel invasions
by foreign enemies. Gun control advocates can advance no argument against the
need to arm “the body of the people” with so-called “assault weapons” or
“weapons of war” or “military grade weapons” to achieve those provisions.
Put
in this light, the full scope of any militiaman’s rights and even the nominal
scope of his duties will include and exceed those available to any theoretical
free layman.
Once
again, those powers over the militia are expressly separate from and in no way
identical to the powers that Congress has over the military as expressed in the
three preceding clauses of Art. I § 8. No one should conflate the terms “militia”
and “military”. Gun control advocates profit immensely from this confusion; no Second
Amendment patriot can afford it or should even tolerate it.
The body of the
original Constitution nullifies an appeal to the Ninth Amendment.
The Ninth
Amendment provides only that no power granted in the Constitution shall be read
in such a way that denies or disparages other
rights retained by the people. In other words, it only protects those rights
not expressly granted in the Constitution. Therefore, it cannot apply to any rights that may be incorporated into the
constitutional meaning of the express provisions of Art. I § 8 clauses 15 and
16. The Ninth Amendment does not
clarify or define the extent of those provisions. It was not intended to. It
was not intended to form the substantial guard against those who may seek to
erode or eliminate “the right of the people to keep and bear arms” as “a well
regulated Militia”.
No. No. No.
The Second
Amendment is that guard, that buttress, that clarifier, that belt to the
suspenders of the provisions stated in Art. I § 8. It ensures that, if at any
time the meaning of “a well regulated Militia” became obscured either by a
lapse in the people’s vigilance or through the machinations of encroaching tyrants, the people would have clear legal recourse to claim for themselves the
right to assemble—armed, organized and disciplined—for the defense of their
God-given rights. Removing it, or even countenancing such removal except for
the sake of argument, is to play into the hands of gun control advocates whose agenda
will eradicate at the source the possibility of an armed, organized, and
disciplined—and therefore vigilant—populace. Dislodge the keystone and the arch will collapse. If
the Second Amendment falls, so does the Ninth Amendment and the whole Bill of
Rights because no such protections are needed in a state that is no longer
secured by, and for the good of, free men.
[1] See
Dr. Edwin Vieira, Jr., How to Dethrone
the Imperial Judiciary, 69, 74-77 (Vision Forum Ministries, 2004); see
also, Gibbons v. Ogden, 22 U.S. 1,
188 (1824) and United States v. Sprague,
282 U.S. 716, 731 (1931) as quoted in his text. See also, Constitutional Homeland Security, Vols. 1 and 2 by the same author.
