Why the 2nd Amendment

2 Jan

From the pen of Walter Williams, professor of economics at George Mason University, and a well-known black conservative.  These are the first several paragraphs of a recent essay entitled “Why the 2nd Amendment”.  The entire essay can be read at http://www.creators.com/opinion/walter-williams/why-the-2nd-amendment-13-01-02.html  .

 

Rep. John Lewis, D-Ga., in the wake of the Newtown, Conn., shootings, said: “The British are not coming. … We don’t need all these guns to kill people.” Lewis’ vision, shared by many, represents a gross ignorance of why the framers of the Constitution gave us the Second Amendment. How about a few quotes from the period and you decide whether our Founding Fathers harbored a fear of foreign tyrants.

Alexander Hamilton: “The best we can hope for concerning the people at large is that they be properly armed,” adding later, “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government.” By the way, Hamilton is referring to what institution when he says “the representatives of the people”?

James Madison: “(The Constitution preserves) the advantage of being armed, which the Americans possess over the people of almost every other nation … (where) the governments are afraid to trust the people with arms.”

Thomas Jefferson: “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.”

George Mason, author of the Virginia Bill of Rights, which inspired our Constitution’s Bill of Rights, said, “To disarm the people — that was the best and most effectual way to enslave them.”

.  .  .  .  Here’s a more recent quote from a card-carrying liberal, the late Vice President Hubert H. Humphrey: “Certainly, one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizen to keep and bear arms. … The right of the citizen to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America but which historically has proven to be always possible.” I have many other Second Amendment references at http://econfaculty.gmu.edu/wew/quotes.html.

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2 Responses to “Why the 2nd Amendment”

  1. William Heino Sr. January 20, 2013 at 2:07 pm #

    If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”). “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?
    Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.
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    Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”
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    In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.
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    It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.

    “..No Person shall be a Representative..”
    “..whole Number of free Persons,..”
    “..three fifths of all other Persons…”
    “..No person shall be a Senator…”
    “..And no Person shall be convicted…”
    “..no Person holding any Office…”
    “..Names of the Persons voting for…”
    “…of such Persons as any of the States…”
    “…not exceeding ten dollars for each Person…”
    “…And no Person holding any…”
    “…or Person holding an Office of Trust o…“
    “…and vote by Ballot for two persons,…”
    “…List of all the Persons voted for,…”
    “…The Person having the greatest Number of Votes…”
    “…and if no Person have a Majority,…”
    “…the Person having the greatest Number…”
    “…No person except a natural born Citizen,…”
    “…Any Person be eligible to that ….”
    “…No Person shall be convicted of …”
    “…except during the Life of the Person attainted….”.
    “…A Person charged in any State…”
    “…No Person held to Service…”
    “…The right of the people to be secure in their persons,…”
    “…and the persons or things to be seized….”
    “..No person shall be held to answer…”
    “..nor shall any person be subject for the same offense….”
    “…they shall name in their ballots the person voted for as President,…”
    “…the person voted for as Vice-President,…”
    “…all persons voted for as President,….”
    “…all persons voted for as Vice-President…”
    “…The person having the greatest Number of votes for President, …”
    “…and if no person have such majority,…”
    “..the persons having the highest numbers …”
    “… The person having the greatest number of votes…”
    “..and if no person have a majority,…”
    “…But no person constitutionally ineligible…”
    “…All persons born or naturalized …”
    “…nor shall any State deprive any person of life, liberty, or property,…”
    “…nor deny to any person within …”
    “…number of persons in each State,….”
    “…No person shall be a Senator or …”
    “..and such person shall act accordingly….”
    “…of the death of any of the persons from…”
    “…death of any of the persons from…”
    “…No person shall be elected to the office…”
    “…and no person who has held the office of President,…”
    “..to which some other person was elected…”
    “…shall not apply to any person holding the office…”
    “..prevent any person who may be holding…”
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    Excerpts in reading Emerson v. United States (1999), or Miller v. United States (1939), one can be struck with the many thoughts, interpretations of what the second amendment means, but more important how it came about and ended. However, even still, I am left with the thought if the Framers had treated Amendment 2 with the same obedience, and reverence to explain the 49 Constitutional references to “person”, there would be no controversy in what is perceived as a right to bear arms.
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    MEMORANDUM OPINION 1
    United States v Emerson
    “The American colonists exercised their right to bear arms under the English Bill of Rights. Indeed, the English government’s success in luring Englishmen to America was due in part to pledges that the immigrants and their children would continue to possess “all the rights of natural subjects, as if born and abiding in England.”
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    “A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny.”
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    “The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights” which he proposed to be added to the Constitution. HALBROOK, supra at 223 n. 145 (citing James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)).”
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    307 U.S. 174 United States v. Miller
    Structural Analysis
    “Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. “After all, the Bill of Rights is not a bill of states’ rights, but the bill of rights retained by the people.” David Harmer, Securing a Free State: Why The Second Amendment Matters, 1998 BYU L. REV. 55, 60 (1998). Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights. Id. Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people.”
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    After debating by the Framers on the proposed right to bear arms, from these few references, some credence is given to the “intent” to “to bear arms”. Analysis of structural statutory construction, “..viewed in the context of the entire Bill of Rights,..” individual citizens, a person, to “bear arms“ however proposed and debated, there is reference to “person” mentioned 49 times, is this not to be considered when looking at the context of the entire Bill Of Rights? Right to bear arms was debated and proposed, but the Second Amendment remains silent.
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    Jones v Smart [1785} 1 Term Rep.44,52 (per Buller, J.) “[W]e are bound to take the act of parliament, as they made it: a casus omissus can in no case be supplied by a Court of Law, for that would be to makes laws.” (Reading Law: The Interpretation of Legal Texts) Antonin Scalia/ Bryan A. Gardner .West.
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    What am I missing?

    • illero January 20, 2013 at 10:04 pm #

      “What am I missing?”

      My friend, I’m not sure you are missing a single thing, but I know I am. When I got done reading your analysis, I was not sure which side of the issue you come down on, when all is said and done. In your write-up, I think I found arguments for and against the “common” interpretation of the 2nd amendment.

      My first observation would be that the Constitution was written and approved separately from the Bill of Rights. So the number of times “person(s)” vs “people” were used in the basic Constitution doesn’t seem relevant to me. And it appears to me that the word “people” appears more often than “person(s)” in the Bill of Rights.

      My own main problem with the 2nd Amendment is that it appears to have either been a rush job, or the debate on it by the “founders”, and subsequent revisions to the language, got it all twisted around. By the time they finished with it, they no longer had a complete sentence, and they were happy enough leaving it that way. Either the writers accidentally inserted one or two commas in places the commas didn’t belong, or their whole purpose for the amendment was so clear to them that they simply “let it ride”.

      I personally think that the meaning they had in mind is found by dropping the first and third commas. This turns the statement into a complete sentence. However, it also makes it a sentence that ties gun ownership closer to the concept of state militias. Because we no longer have clear entities that serve as state militias, this creates a problem.

      But, fortunately, we are provided by the fathers themselves with the interpretation – which was the point of my posting. I cannot adequately decipher the real meaning of this amendment from the word structure and punctuation itself, so I fall back on clarifications such as those provided in the posting, to help me understand the intent. Since the intent appears to have nothing to do with hunting and sport shooting but, rather, to protect people/states against “outsiders” and against the kind of tyranny that governments can impose on their citizenry, it begins to make sense. The states were viewed as sovereign and, although the central government could seek activation of state militias for national defense (there not being much of a standing army), the militias were really owned and operated by the states for their own defense, and to provide a bulwark against a government gone bad.

      When all is said and done, are we basically in agreement, or are we in solid disagreement?

      Either way, thanks for your thoughtful, and thought-provoking, response.

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