The Right Argument in Support of the Second Amendment – The Right to Keep & Bear Arms

The Right Argument in Support of the Second Amendment – The Right to Keep & Bear Arms

So much time is spent in gun circles pondering how to bring more people into supporting the passion that is the Right to Keep and Bear Arms. All manners of arguments are created, some using empirical data and statistics to show that crime is not caused by guns or that guns actually reduce crime; others citing historical significance showing that our history and the basis for the power and security of our citizenry is an armed populace.
Personally, my experience is that if you attack the issue from the basis of ALL rights; that all free people have them at birth and they cannot truly be taken away (not even by law) and that they are all important in order for a free people to flourish despite promises of safety or prosperity in the absence of said rights, it’s much easier to bring people around to the support of the Second Amendment.

However, in order to do this, the deliverer of said message has to believe it as well. So many pro-gun people aren’t really pro-rights; they’re merely on the wagon of the Second Amendment because they have a personal connection with firearms (i.e. hunting, self-defense, hobbies, and competition). The problem here arises when an issue of firearms rights crops up where such people have no personal connection. For instance, the issue of private citizens carrying guns for protection. Some people, gun owners included, don’t want to allow others to carry around a gun whenever it pleases them. This belief ignores the premise of an unalienable right; it cannot be given to someone by someone else, they already have it at birth, and thus, it cannot be taken away no matter how good the reason seems to be.
Consider the particularly contested issue of individuals released from prison having their Second Amendment rights honored. Many gun owners believe that any person with a criminal past should lose their Second Amendment rights forever (if you can’t do the time, don’t do the crime). This makes sense because such people are often only supporters insofar as it appears reasonable considering their connection to firearms (i.e. you might find a lot of hunters who feel that ex-convicts should be allowed limited access to hunt but should never be able to own a handgun for self-defense, even though the Second Amendment is, in fact, not about hunting or a right to do so). The real conflict here is that again, it ignores what a right truly is and what can be done to it, when, why and by whom.
When one is incarcerated, while their rights still technically exist, they may not exercise them because they are not presently free. An abuse of freedom is not exercising it, and when one abuses their freedom in this country, they relinquish many of their rights, but only to the degree necessary in order to facilitate punishment. People in jail have very limited rights against search and seizure without a warrant, to peaceably assemble, or to be secure in their persons and papers…they also have no right to keep and bear arms while incarcerated. Being unable to exercise one’s rights is not part of the penalty; it is simply a necessity in order to conduct the punishment for the crimes one is convicted of (which is obvious as far as the Second Amendment goes as an armed prison population cannot be incarcerated against their will).
While in jail, the right to practice one’s chosen faith is maintained, so is the right against being subjected to cruel and unusual punishment; this is simply because rights are not taken away as part of the punishment, they are only put into a sort of civil limbo, but again, only when is necessary in the course of the incarceration. If we take an honest look at which rights are conveyed to inmates and which are suspended, it is readily evident that prohibiting the exercise of certain rights is not, and was never meant to be part and parcel to the punishment and/or course of rehabilitation prescribed through the legal system for a given crime.
To suggest that once out of prison, after the reasonable debt required has been satisfied, one should permanently lose the freedom to exercise their rights goes far beyond the scope of power that the government or any authority should have in this country. Even if the majority of free citizens supported such an idea, I would argue that it certainly falls under cruel punishment (of “cruel and unusual punishment” fame). Being punished for one’s entire life for a crime that may have been so minor as to require a two year jail sentence is most certainly cruel, and particularly unusual in that if the crime justifies a lifetime punishment, it would certainly justify a lifetime commitment to incarceration. Now I’m certainly not saying that no person convicted of any crime should be prohibited the use or possession of firearms, I’m actually supportive of the idea if, and only if, it’s actually a part of due process. Mandatory Second Amendment disabilities for any felony in my opinion is where the problem lies. All felonies are not equal, and while I would be comfortable with a judge or jury stipulating that a convicted murderer not have access to firearms if they ever get out of jail, I’m not so sure allowing the government to utilize a blanket prohibition for all felonies when it automatically includes people convicted of say, grand theft or fraud is the right course of action. While I do agree that the latter charges are serious in nature, they in no way speak to how dangerous a person is, nor do they indicate a scenario where I personally feel that someone has forfeit their natural right to defend themselves. Sure those people that commit such crimes aren’t very responsible or trustworthy, but rights aren’t granted with a predication on trust, they’re granted at birth because each person has a right to protect their life and liberty. Should someone that stole an automobile at the age of 22 die on the street or in their home at the hands of a murderer at the age of 27 after they serve their time and get released from prison? Would you not feel more comfortable standing on a firing line with that person as another soldier against tyranny or invasion rather than being one rifle short?
If a person were convicted of a crime and sent to jail, no reasonable person would suggest that such an individual should automatically be prohibited from exercising their religion or going to church as often as they saw fit once they were released. No reasonable person would suggest that someone who was once incarcerated should be subjected to torture after their release, nor would any reasonable person suggest that said person should automatically be subjected to random body cavity searches or searches into their homes, persons, banking records or personal property without a warrant and/or probable cause. Furthermore, no reasonable person would support an ex-convict being summarily jailed without due process, without the opportunity to a defense against the charges or in the absence of the state being able to articulate the offense and the burden of proof required to show that a crime had actually been committed by said person.
So why then, do we have gun owners, individuals who live and breathe the very essence of a right when it comes to their guns, so ready and willing to strip someone else of their rights in a manner not explicitly authorized by the Constitution or the Bill of Rights? For the very same reasons that some people think that the religious freedom of the First Amendment doesn’t apply to Muslims, Jews or Wiccans, or if it does, only to the extent that their own religion is given an amount preferential treatment or acknowledgment above all others.
For the same reason why some people feel that the Freedom of Speech doesn’t protect political or social dissidence, pornographic materials or free expression in music, literature, film and art if their own views or tastes are offended.
For the very same reason that some people feel that freedom from Unreasonable Search and Seizure without a Warrant and Probable Cause, the right to a Speedy and Public Trial by Jury or protection from being Deprived of Life, Liberty or Property without Due Process doesn’t exist if the target is the same faith, nationality or skin color as someone that committed an act of war, terror or treason against this country or if the target is merely suspected of being in league with or of having similar convictions, goals or aims as those people.
That reason, which is the same in all of the examples above, and is virtually the same in all cases where an individual or group attempts to make a case for infringing on the rights of others, is that, most people are only into freedom as deep as it personally affects them, they could care less for anything above and beyond what level of liberty they deem useful to their own beliefs or purposes.
Rights are defined in the extreme; privileges are defined by boundaries and limits. If one can do as they please, so long as no harm is being done to another, that’s a right, that’s free, that’s liberty. If one can only do as they please so long as no one’s sense of decency, taste, sensibility, security, morals, reason or politics is being offended, that’s a privilege.
When we say, ‘you have the right to practice your faith, so long as I approve of it’, or ‘you have the right to keep and bear arms so long as I still feel safe and comfortable with the idea of you having a gun’, or ‘you have the right to speak your piece so long as I don’t get offended’, or ‘you have the right to due process and to be secure in your person, property or papers so long as I trust you’, we’re really not saying anything about rights; we’re talking about giving someone a benefit within the boundaries that we’re agreeable to.
Privilege is defined as, “A special advantage, immunity, permission, right, or benefit granted to or enjoyed by an individual, class, or caste”. Pay close attention to the part where it says it is “granted”; rights aren’t granted by anyone, we automatically have them at birth, they’re the default setting. Since no one granted those rights to us, no one can revoke them no matter how sound or compelling their reasoning is. So the issue is not whether or not we are or should be comfortable giving anyone anything (anything granted is a privilege), the issue is whether or not anyone can take certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, away from a free person. Since no one gave us those rights, not individuals, not society, not the majority and not the government, the answer is no, not in this republic. The moment people wake up and embrace this truth is the moment that we will begin our return to a free people, and support for all rights, including the Second Amendment, will be the default, just as it was intended. The Bill of Rights is a package deal, a package of rights which are defined in the extremes (as all rights inherently are); there is no such thing as half-way free. That’s the right argument in support of the Second Amendment, everything else is pleading for the granting of a privilege in lieu of rights we already have.

The Right to Keep and Bear Arms

 

The Right to Keep and Bear Arms

The Right to Keep and Bear Arms

(c) 1993 - 2003

Gary A. Shade

Introduction

Much of today’s debate regarding the individual’s right to keep and bear arms, has been

shrouded by misapplying various interpretations of the militia clause of the second

amendment to the US Constitution. The second amendment states:

"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 proponents of gun control insist that the second amendment only apply to an

organized militia such as the National Guard. However they overlook the fact the

National Guard in times of national crises, comes under direct control of the Federal

Government. The Guard works in concert with the regular Army in carrying out the

Federal military mission. This was finally put to rest when in the 1980s, then Minnesota

Governor Rudy Perpich sued the Federal Government over control of the National Guard.

The State of Minnesota lost the case and the Federal Government won.

The act of federalizing the National Guard is due to the law passed by Congress on

January 21, 1903. It provides that the "..organized militia known as the National Guard of

the state, Territory or District of Columbia.. " is under the command of the Nation’s Chief

Executive. Furthermore, all arms are controlled by and owned by the Federal

Government.

If indeed the National Guard can be placed under Federal Control, then who is the

unorganized militia? This question is rooted in historical precedence with ample evidence

provided by the ancients, and contemporary thinkers that we are. That is to say, all ablebodied

men (and now perhaps women) between the ages of 17 and 45 who are capable of

acting in defense of the country. This definition also exits in the current United States

Code [10 U.S.C. 311 (a)] which states:

"The militia of the United States consists of all able-bodied males at least

17 years of age, and, except as provided in section 313 of title 32, under

45 years of age . . . "

The US Code further divides the militia into two classes: The organized, and the

unorganized militia. The organized militia is viewed in the USC as the National Guard

and Naval Militia, and the unorganized militia that consists of ".. all members of the

militia who are not members of the National Guard or the Naval Militia." [10 U.S.C. 311

(c)]

Advocates of gun control not only ignore the definition of militia as that of the citizen

soldier, they also ignore that the final clause that uses the verbiage of the "..right of the

people..", is the same application of the "the people as used in the First, Fourth, Ninth,

and Tenth Amendments.

The application of the First Amendment applies to an individual’s right to free speech.

The Fourth Amendment secures the individual against unreasonable searches and

seizures of property by the government. If the Second Amendment were to be construed

as a collective right, then it logically follows that only corporations or collective bodies

(such as political parties) would have a right to free speech, and would be free from

unreasonable search and seizures.

Yet these Amendments have been interpreted to be individual rights due to the clause that

refers to ’the people’. The people refer to the individuals that make up the general

populace.

It is precisely this definition that divides today’s debate on gun control. The idea of the

citizen soldier is older than ancient Rome. The unorganized militia provides for a citizen

soldier to be the guardian of liberty and freedom.

Where did this well established but often overlooked view of the militia originate? As

will be seen, its history can be found in the most early discussions on politics: From

Rome, to Greece, to Virginia.

The most contemporary work on this subject, is:

That Every Man Be Armed - The Evolution of a Constitutional Right

by Attorney Stephen P. Halbrook. Halbrook’s work is the most thorough and documented

work on the Second Amendment this century. This paper relies heavily upon the work of

Mr. Halbrook, and provides the necessary and proper credits in the bibliography.

The Ancient Greeks and Romans

In Plato’s Republic, Plato discusses how, through force, an unjust state could win favor.

Oligarchy forms of government occur when privilege is fixed by statute. (Republic 139-

140.) Plato envisions a move to a democracy, but retains much of the social inequality

associated with absolutism. The need for a strong leader is anticipated who would revert

to absolute authority and halt the march to democracy. Plato concludes:

"Then to be sure, the people will learn what sort of a creature it has bred

and nursed to greatness in its bosom, until now the child is too strong for

the parent to drive out. Do you mean that the despot will dare to lay hands

on this father of his and beat him if he resists? Yes, when once he has

disarmed him." (Republic 295)

The idea of a philosopher king that Plato contemplates, assumes the best in human nature

and does not speculate on the more contemporary historical fragility of such assumptions.

Even Catherine the Great of Russia, an enlightened despot, later reversed herself from

enlightenment to absolutism

promoter of Voltaire and others, Catherine later burned his books and banned them from

Russia.

(The Western Heritage, 653.) Whereas once a shrewd(The Western Heritage, 679.)

Aristotle argued that citizens must be protected from tyranny, and that tyranny was

achieved through the King’s use of a standing army.

Aristotle spoke of the King’s use of the standing army to wage war, and to heavily tax the

populace. These efforts would preoccupy the general populace to prevent an overthrow

the oligarchy.

(Politics, 82) Both Plato and(That Every Man be Armed, 12)

Rome’s Cicero also put forth the notion that an individual also has the right to bear arms

in self defense. When defending Titus Annius Milo in 53 B.C. for the murder of Publius

Claudius Pulcher, he stated:

There are, many occasions on which homicide is justifiable. In particular, when violence

is needed to repel violence, such an act is not merely justified but unavoidable"

Political Speeches, 78-81)

(Selected

Here the natural law of self defense is eloquently stated by Cicero. Cicero states:

".. there exists a law, not written down anywhere but inborn in our hearts;

a law which comes to us not by training or reading but by natural

intuition."

He further discusses the moral righteousness of using ".. every method to protect

ourselves." Not only is Cicero speaking of the individual’s right to bear arms in self

defense from another individual, but also to defend one’s person and property from

violence by the state.

Rome stood as a free republic until Gaius Marius abolished the citizen soldier in 49 B.C.

(That Every Man Be Armed, 18)

Caesar was ruthless in his conquests. He would not accept surrender from his enemies

until all the arms of the conquered town had been collected. He would mutilate those who

bore arms against him by cutting off their hands.

knew that an armed populace was more difficult to conquer.

Caesar’s reign marked the beginning of the Empire.(That Every Man Be Armed, 18) Caesar

Machiavelli

Machiavelli was also a believer in the citizen soldier or citizen militia. In his work

Discourses on the First Ten Books of Titus Livy, he praises Rome before the reign of

Caesar. Machiavelli was also against large standing armies as shown in the following

passage.

"..in attacking a foreign country, [the Romans] never sent out armies

greater than fifty thousand men; but for home defense against the Gauls

after the first Punic war eighteen hundred thousand....In conclusion,

therefore, I say again that a ruler who has his people well armed and

equipped for war, should always wait at home to wage war.."

107)

(Discourses,

Machiavelli also notes that:

"Rome remained free for four hundred years and Sparta for eight hundred"

with an armed populace, while other countries who disarmed their citizens

"lost their liberties in less than forty years."

(The Art of War, 18)

The comparison of Machiavelli’s writing to similar wording found in our Constitution

proves to be surprisingly similar.

Machiavelli wrote that private citizens made up the

(The Art of War, 39)

to the security of a free State.."

well regulated, meant the same thing: Citizens trained to arms.

"..regular and well ordered militia.."and our Constitution reads "A well regulated Militia being necessaryTo Machiavelli, well ordered, and to our founding fathers

Seventeenth Century Thought

In the 17th century, great thinkers attempted to justify the existence of absolute rulers,

while others such as Algernon Sidney and John Locke argued for a democratic republic.

In arguing for a monarchy, Jean Bodin sees the deprivation of arms essential to

maintaining a ruler’s authority. Bodin believed that such ruler’s were above the law.

Similar to today’s argument’s for gun control, Bodin saw arms control as a means of

people control, to control the masses and prevent seditions. Similar to today, the

arguments used in achieving an unarmed populace were to prevent murders, and

seditions. Bodin states in his Six Bookes of A Commonweale (1606),

"..the law may be good, just, and reasonable, and yet the prince to be no

way subject or bound thereto: as if he should forbid all his subjects, except

his guard and garrison soldiers, upon pain of death to carry weapons, so to

take away the fears of murders and seditions; he in this case ought not to

be subject to his own law, but to the contrary, to be well armed for the

defense of the good, and punishment of the evil."

Commonweale, 106)

(Six Bookes on A

To Bodin, the ruling monarchy was to be placed above the laws that governed their

subjects. Acts not unlike what Bodin had envisioned, occur today where citizens are

disarmed by law, yet the privileged class is exempted.

John Locke was also an advocate of the citizen soldier. Locke explained in great detail in

his Two Treatises on Civil Government (1689), that government of man must be based

on mutual consent, and that each individual remains free due to the natural laws of

nature. Because of this, each man has the right to overthrow a despotic government. As

each individual maintains their natural rights, they also have the right to defend those

rights against any individual or group who threatens them. Locke wrote:

".. it being reasonable and just I should have a right to destroy that which

threatens me with destruction."

(Second Treatise of Civil Government, 14)

Locke firmly believed that man had a moral right to use force to overthrow an unjust

government. That the right to resist an unjust government with arms was little different

than protecting one’s self from an individual’s aggression.

Framer’s Intent

Locke’s influence on our founding fathers was profound. His major contribution that all

men retain their natural rights to life, liberty, and property became a major influence on

how our Constitution was written. The Virginia Declaration of Rights, (which was largely

written by George Mason on June 12, 1776), nearly echoed verbatim Locke’s views on

natural rights. Article One states:

"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, liberty, with the means of acquiring and possessing

property, and pursuing and obtaining happiness and safety."

Article 13 of the Virginia Bill of Rights further states:

"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 governed by, the civil power."

Here again we plainly see that the early framers of the Declaration of Rights believed that

the new nation’s security rested upon a citizen militia. The idea presupposes a natural

right for the citizens to keep and bear arms. Virginia’s Declaration of Rights would later

serve as the model for our own Constitution.

During the Philadelphia Convention of 1788, Patrick Henry argued passionately for the

individual’s rights against the Federalists James Madison and Edmund Randolf. Henry

was insistent that the new Constitution of the United States contain a Bill of Rights

similar to Virginia’s. Madison did not believe one was necessary as the people retained

the right to overthrow an unjust government. He also believed that all rights not given up

to the new government were retained by the people.

Henry and Mason both argued against ratifying the new Constitution unless specific

right’s were enumerated as had been done with their own State Constitution. Randolf,

himself an ally of Madison’s, refused to sign the new Constitution unless a Bill of Rights

were present.

(Madison and The Bill of Rights, 4)

The original language of the Second Amendment as proposed by Madison, 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 to a free

country: but no person religiously scrupulous of bearing arms, shall be

compelled to render military service in person." (Madison and the Bill of

Rights, 5)

Madison added the language of the right to keep and bear arms in first draft. A right of

the people. The wording the house committee chose read:

"A well regulated militia, composed of the body of the people, being the

best security of a free state, the right of the people to keep and bear arms

shall not be infringed, but no person religiously scrupulous shall be

compelled to bear arms."

This draft, reversed the people and militia clauses but retained Madison’s conscientious

objector clause. Additionally author Halbrook points out that it is clearly shown from

Madison’s notes that he would use to propose the Amendment:

"They [the proposed amendments] relate first to private rights .." (That

Every Man be Armed, 76)

The Senate version dropped the conscientious objector clause all together, and what was

to become our nation’s second amendment was finally adopted by the states:

"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."

During the House debates, of our Second Amendment, Representative Elbridge Gerry

begged the question:

"What, Sir is the use of a militia? It is to prevent the establishment of a

standing army, the bane of liberty."

The well-regulated clause of the second amendment suggests that the citizen soldier must

retain not only the right to keep and bear arms, but must be proficient in their use.

Every Man Be Armed, 78)

(That

The argument that the "well-regulated militia" clause implies a collective rather than an

individual right can be rebuked with the Federalist Papers number 29, where Alexander

Hamilton wrote:

"..the great body of yeomanry and of the other classes of citizens to be

under arms for the purpose of going through military exercises and

evolutions, as often as might be necessary to acquire the degree of

perfection which would entitle them to the character of a well-regulated

militia."

(Federalists #29, 184-185)

Here, as can be clearly seen, a well-regulated militia is composed of ordinary citizens

who are trained to arms. The contemporary argument used by gun control advocates that

the militia clause means only police or the government should be allowed to have arms,

has no historical, or factual precedence what so ever.

Conclusion

The militia is quite simply you and me. It is our moral duty to be proficient in the use of

arms for our own self preservation and that of our country. Standing armies have been

viewed as the bane of liberty, and not the protectors of it. Freemen have a right and moral

duty to oppose the unlawful taking of our natural rights by any means available to us. As

radical and revolutionary as this may sound today, it has been said many times before. It

is as true today as it was in Ancient Rome, Sparta, or in Eighteenth Century Virginia.

Works Cited

Plato, Republic 139-140 (E. Vornford translation. 1945), as cited by Halbrook, Stephen

P., That Every Man Be Armed, p. 9. The LibertyTree Press, San Francisco CA. 1984.

Plato, Republic, p. 295 (E. Vornford translation. 1945), as cited by Halbrook, Stephen P.,

That Every Man Be Armed, p. 10. The LibertyTree Press, San Francisco CA.

Kagan D., and Ozment S., and Turner F., The Western Heritage (Fourth Edition, Volume

II), p. 653. Macmillan Publishing Company, NY, 1987.

Id. at 679.

Aristotle, Politics, p. 82, as cited by Halbrook, Stephen P., That Every Man Be Armed, p.

9. The LibertyTree Press, San Francisco CA. 1984.

Halbrook, Stephen P., That Every Man Be Armed, p. 12. The LibertyTree Press, San

Francisco CA. 1984.

Cicero, Selected Political Speeches, pp. 79-81 (M. Grant transl.1969), as cited by

Halbrook, Stephen P., That Every Man Be Armed, p. 16. The LibertyTree Press, San

Francisco CA.

Halbrook, Stephen P., That Every Man Be Armed, p. 18. The LibertyTree Press, San

Francisco CA. 1984.

Machiavelli, Discourses, p. 107, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 21. The LibertyTree Press, San Francisco CA. 1984.

Machiavelli, The Art of War, p. 18, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.

Machiavelli, The Art of War, p.39, as cited by Halbrook, Stephen P., That Every Man Be

Armed, p. 22. The LibertyTree Press, San Francisco CA. 1984.

Bodin, Jean, Six Books on A Commonweale, p. 106, as cited by Halbrook, Stephen P.,

That Every Man Be Armed, p. 25. The LibertyTree Press, San Francisco CA. 1984.

Locke, John, Second Treatise of Civil Government, p.14, (Chicago 1955), as cited by

Halbrook, Stephen P., That Every Man Be Armed, p. 22. The LibertyTree Press, San

Francisco CA. 1984.

McCabe, Michael K., Madison & The Bill Of Rights, p. 4, American Rifleman, Feb.,

Mar., Apr., 1991. National Rifle Association, Washington DC.

Id. at 5.

Halbrook, Stephen P., That Every Man Be Armed, p. 76. The LibertyTree Press, San

Francisco CA. 1984.

Id. at 78.

The Legacy of Republicanism vs. Absolutism