Home > Gun Rights, militia, SCOTUS, Second Amendment, Uncategorized, US Constitution, Virginia > Uber-Second Amendment Clarification: Argument One/Two/Three!

Uber-Second Amendment Clarification: Argument One/Two/Three!

2ndA 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.”
Second Amendment to the U.S. Constitution

Is the Second Amendment hard to understand? Can those who support unregulated gun rights and/or an armed citizenry for the purpose of fighting the United States government be right that the Founding Fathers feared the possibility that this American government (the government in which they created with checks and balances) would become tyrannical and the only way to preserve freedom from our government is to have an armed citizenry?

Can those that want gun regulations be correct in stating that it was a means to establish a militia approach to the need for defense of the US instead of a peacetime army? Let’s take a peak at this to get an understanding or not! Can they both be wrong in their assertions? Can the true history of the arguments that lead to the writing of the Second Amendment be found?

Americans and pundits have been twisting themselves into pretzels in order to pull their pre-determined definition out of the Second Amendment text. There are a myriad of sites that will purport that this well-crafted amendment clearly states that Americans should have unfettered rights to gun ownership; and they would be wrong. The syntax itself clearly establishes a condition to this particular amendment and the rights it grants. With this assertion, what are arguments for or against unfettered gun rights?

The Second Amendment, of the Bill of Rights, is indeed a well-crafted sentence. By that, I mean its syntax permits only one reasonable interpretation of the authors’ meaning “In order to establish a well regulated militia, for the defense and security of a free state, the rights to of the people to keep and bear arms will not be infringed”. The meaning is clear when a sensible person reads the Second Amendment on its face and even more clarity is obtained via a reading of the arguments behind its adoption. A look at the arguments of those that support the idea that the Second Amendment is about an unfettered personal  right to own and bear arms is in order to point out the fallacy within.

Argument one is that “No other amendment of the original ten speak of the States having rights.” While this is a correct statement, it does not equate to the discounting of the actual wordage of the Second Amendment. They attempt to use this thinking as a justification that the Second Amendment is not about state rights, but about personal rights. This historic and constitutional pretzel-like contortion is at odds with the wording of the amendment and with the Federalist Papers themselves; see Federalist Papers 46 and 29. There is one problem with this stance; history rejects it! The condition (A well regulated militia being necessary to the security of a free state) is set before the assertion ( the right of the people to keep and bear arms shall not be infringed) which gives it the primary adoption.

The assertion that the militia requirement is first and thereby inherit precedence over the latter holds as much validity as their argument! The amendment only affirms that the right of the people to bear arms is in conjunction or dependence with the needs of states to maintain militias or, today, the National Guard. Another point that should be made is that the arguments as to why this particular amendment references states rights can be found in the arguments during its adoption. Article 1, Section 8 of the proposed Constitution, which gave the federal government the power to raise and supervise a militia/army was the primary reason that the Second Amendment has a reference to state rights.

The representatives of Virginia feared that Article 1, Section 8 of the Constitution gave Congress the inherent right to free the South’s slaves for the purpose of national defense (a process then called “Manumission”). You can find a great write-up on this fact in an article by Thom Hartmann called “The Second Amendment was Ratified to Preserve Slavery” and in a book by Sally E. Haden, “Slave Patrols: Law and Violence in Virginia and the Carolina. This clearly explains the rationale for the reference to state powers as can be observed in the following arguments made against the adoption of the Second Amendment because of fear of federal intrusion into state controlled militia!

Patrick Henry stated

“[T]hey (abolitionists in the North) will search that paper [the Constitution], and see if they have power of manumission,” said Henry.  “And have they not, sir? Have they not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?

“This is no ambiguous implication or logical deduction. The paper speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.”

He added: “This is a local matter, and I can see no propriety in subjecting it to Congress.”

This fear was not without merit seeing that Abraham Lincoln pretty much fulfilled that fear with later legislation, so I guess they had a point! Ironic and just to say the least!

Argument two is that nowhere in the Constitution are rights recognized for government (which they argue the Founding Fathers’ viewed government as the servant) but denied to the people (which they argue the Founding Fathers’ viewed “We The People” as the masters). The assertion that government was to be servitude to We The People  is not all together correct. The Founding Fathers saw “We, the people” as being “We, the government” seeing that the people put our electors in office as representatives of our behalf. The government is US has been lost through the years with the widening segregation being welded between our government and We The People.

The ideology that the government is this separate entity from the collective WE was completely foreign to the original thinking of the Founding Fathers. The powers of the government are listed in detail in the Constitution in Articles 1, 2, and 3 respectfully. Powers given to Congress, the President, the Supreme Court, and even states are rights of the government and government is the personification of WE THE PEOPLE! ANYTIME there is a  separation of the government’s governance and the will of “We The People” being governed, then we are to rectify that via the vote; not with armed insurrection. That is why a complete discounting of this ideology is in order and “the government is US” should be repeated to as many Americans as possible.

scotusArgument three is that the initial sections of the Second Amendment is fluff or, as stated in the Supreme Court case District of Columbia v. Heller, is merely a prefatory clause. This arguments attempts to do a judicial jump of logic that is only comparable in its idiocy to the Citizens United case. It states that the comma after “state” is proof that the Second Amendment does not merely protect the “collective” right of states to maintain their militias, but endows each citizen with an “individual” right to carry a gun, regardless of membership in the local militia.

Argument three actually states that the Second Amendment really only consists of the latter half (the right of the people to keep and bear arms shall not be infringed) and that the other half is irrelevant in its meaning. Of course this interpretation is idiotic and unworthy of our greatest level of judicial review; the Supreme Court Of The United States (SCOTUS). If this interpretation is correct then the writers of the Constitution were stupid for writing such confusing and nonsensical verbiage at the beginning of this amendment. If this logic is applied to the Constitution universally,y then we could get a completely different understanding of all of the Constitution and its amendments. The notions that Founding Fathers made such a grievous error in writing the Second Amendment or that they were stupid for writing the verbiage as they did are not acceptable options in the minds of most scholars.

The wording of the Second Amendment was deliberate and clear. It was a compromise that was to satisfy both the factions that wanted to assure that America did not have a standing army and to put at ease those who understood/feared that the Second Amendment would circumvent the states existing right to have a local militia; Virginia I am talking to you!

The Founding Fathers had a great grasp of  language and intent of said language, so when they stated “A well regulated militia being necessary to the security of a free state” in conjunction with “the right of the people to keep and bear arms shall not be infringed” it was not by accident. It was a deliberate act as a means to convince Virginia to ratify the Constitution. The primary rationale for the Second Amendment was in answer to the nagging question of whether or not the United States should have a standing army or only create an army based on country needs. The compromise was to create the Second Amendment with the caveat of appeasing Virginia which at the time was the swing state which was the make-or-break vote for the ratification of the Constitution.

In Federalist 29, Alexander Hamilton wrote that a militia required “the degree of perfection which would entitle them to the character of a well regulated militia” by going “through military exercises and evolutions, as often as might be necessary.” The sentence does not bewilder the average reader when that  person does not have a preordained point to prove. The confusion comes in when one is trying to make the Second Amendment equal to their predisposed disposition. With this being said, I support the idea that Americans have the right to “keep and bear arms”, but within the constructs and permissions granted to them from We The Government (be it state, city, or federally driven). The intent of this blog is to only point out the original thinking of the founders when they framed the Second Amendment. With the progression of our nation comes an expanded definition of all things but not under the guise of a prefatory clause!

Do not be fooled by the myriad of well written websites on the topic of the Second Amendment (the slight measure of irony in that statement is not lost) and the intent therein of the Founding Fathers in writing it; do you due diligence. Read Federalist Papers 29 and 46. Read the arguments for and against the adoption of the Constitution and Second Amendment; for with this you will get a grander understanding of the Second Amendment and how we should understand it.

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