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The deconstruction and repeal of the Second Amendment
By Mark Alexander
Article Two (the Second Amendment) was written as a proscription against government intrusion upon and usurpation of the Natural Rights of Man, because "the right of the people to keep and bear Arms" is the most formidable line of defense against government intrusion on those rights.
Indeed, this inherent right is the first civil right — the fundamental guarantor of all others — as affirmed by our Founders.
In fact, the first shots of the eight-year struggle for American independence, fired at Lexington and Concord, were in response to the British government's attempt to disarm "the People."
It was understood then, as now, that the inherent right to self-defense was irrevocable — and not to be infringed. It was and remains the most fundamental of the unalienable Rights of Man — the rights of all people.
After the conclusion of the Revolutionary War, during the 1788 Massachusetts Convention debates for ratification of the U.S. Constitution, Samuel Adams proclaimed, "The said Constitution shall never be construed ... to prevent the People of the United States who are peaceable citizens from keeping their own arms." Other states provided similar assurances in their constitutions, based on common law.
Once our Constitution was ratified, the debate over the addition of a "Bill of Rights," including the Second Amendment right to self-defense, was hotly contested. Many of our Founders argued that the mere reiteration of these innate and unalienable Rights of Mankind within the Constitution might imply that they are somehow subject to amendment, as if granted to the people by the state rather than inherent as "endowed by their Creator."
Typical of those objections was this from Alexander Hamilton in Federalist No. 84: "Bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
In his first Bill of Rights draft, James Madison proposed what would become the Second Amendment. This was a concession to the Anti-Federalists, who insisted upon the enumeration of these specific Liberties in the Constitution, much to the objection of the Federalists, who believe this might imply to future generations that those inherent rights were subject to amendment.
Given the preeminent status of the Second Amendment and the growing chorus of leftists calling to amend it until they can rally enough populist support to fully repeal it, we should be clear that our Founders never intended for this right to be infringed. And we should be equally clear about what our Founders intended to convey with each clause: "A well regulated Militia being necessary to the security of a free State," and "the right of the people to keep and bear Arms shall not be infringed."
The reference to "a well regulated militia" has been a subject of some popular dispute.
Do these words refer to a standing army as some suggest — a national body of armed forces necessary for the safety and security of the nation, but which could be a potential threat to its citizens under the control of an oppressive regime?
While the militia reference is not to a standing army, it's clear that our Founders had a uniform concern for such military bodies. At the Constitutional Convention, Madison said: "A standing military force, with an overgrown Executive will not long be safe companions to Liberty. The means of defense against foreign danger have been always the instruments of tyranny at home."
In Madison's Federalist Number 46, he declares that the Constitution should be ratified despite fears of a standing army, because Americans are armed, and because they are also organized into state militias not controlled by the proposed federal government.
According to Madison: "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."
Madison also observed, prophetically, that in Europe, "the governments are afraid to trust the people with arms." (I note "prophetically" because the inability of Europeans to defend themselves against the tyrannical socialist dictatorships of both Adolf Hitler and Joseph Stalin resulted in the deaths of more than 35 million European civilians.)
More specifically, as Noah Webster wrote in 1787: "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 pretense, 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."
"A people can never be deprived of their liberties," Webster insisted, "while they retain in their own hands, a power sufficient to any other power in the state."
Despite this fundamental truth, there exists a cynical and malicious argument for undermining the Second Amendment. This argument is made by historical revisionists who insist that because "a well regulated militia" refers to a state militia (or guard), it only authorizes "the people to keep and bear Arms" in their capacity as members of such militias.
The Second Amendment, however, has two clauses, just as it has two purposes. The first affirms the advantage of "a well regulated militia." The second affirms the "right of the people" (not state militias) "to keep and bear Arms." Thus, the second does not limit or restrict the right "to keep and bear Arms" to militias, but rather affirms the "right of the people" to do so.
Regarding the Second Amendment's linguistic construction, writer and constitutional researcher Neil Schulman set himself to the task of clearing up the popular confusion that statists in the Democrat Party seek to sow about what the Second Amendment actually affirms.
First, he found one of the nation's leading academic experts on American language usage, Roy Copperud, a distinguished professor of journalism at the University of Southern California, and the author of American Usage and Style: The Consensus. At the time, he was a member of The American Heritage Dictionary's usage panel and cited by Merriam Webster's Usage Dictionary as an renowned expert.
Schulman then asked Professor Copperud to clarify what rights the Second Amendment actually specifies.
Schulman's first question: "The debate over this amendment has been whether the first part of the sentence, 'A well regulated Militia being necessary to the security of a free State,' is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, 'the right of the people to keep and bear Arms shall not be infringed.' I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."
Schulman: "Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well regulated militia'?"
Copperud: "The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."
Schulman: "Is 'the right of the people to keep and bear Arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"
Copperud: "The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."
Schulman: "Is 'the right of the people to keep and bear Arms' conditioned upon whether or not a well regulated militia, is, in fact, necessary to the security of a free State? And if that condition is not existing, is the statement 'the right of the People to keep and bear Arms shall not be infringed' null and void?"
Copperud: "No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."
Schulman: "Does the clause 'A well regulated Militia being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear Arms,' or is such right deemed unconditional by the meaning of the entire sentence?"
Copperud: "The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."
Schulman: "Which of the following does the phrase 'well regulated Militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"
Copperud: "The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."
Schulman: "If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written [in 1789], but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."
Copperud: "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: 'Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged.'"
Schulman: "As a 'scientific control' on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence: 'A well-schooled electorate being necessary to the security of a free State, the right of the people to keep and read Books shall not be infringed.'
"My questions for the usage analysis of this sentence would be,
"(1) Is the grammatical structure and usage of this sentence and the way the words modify each other identical to the Second Amendment's sentence?; and
"(2) Could this sentence be interpreted to restrict 'the right of the people to keep and read Books' only to 'a well-educated electorate' — for example, registered voters with a high-school diploma?"
Copperud: "(1) Your 'scientific control' sentence precisely parallels the amendment in grammatical structure. (2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation."
To sum up Professor Copperud's answers, in the context of the debates about the Bill of Rights, our Founders believed that both the establishment of militias and the individual right to keep and bear arms were vital to the future of Liberty. Thus, the Second Amendment affirms two rights, much as the First Amendment affirms five rights — religion, speech, press, assembly and petition of the government.
Moreover, in the context at the time of the framing, "well regulated" meant orderly, much as it did in common references to "well regulated government" and "well regulated families."
It was also generally understood that "militia" was a reference to the whole body of "the People," though state militias were generally limited to able-bodied men.
George Mason, whose Virginia Bill of Rights was the inspiration for our Constitution's Bill of Rights, noted in the ratification debates, "I ask, Who are the militia? They consist now of the whole people..." He noted as well that to disarm the people "was the best and most effectual way to enslave them."
Virginia statesman Richard Henry Lee wrote, "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."
Likewise during the ratification debates, Patrick Henry declared: "The great object is that every man be armed. Everyone who is able may have a gun. ... Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?"
Our Founders agreed and articulated repeatedly that the inherent "right of the people to keep and bear Arms" was the most dependable assurance of preserving Liberty.
In his magisterial Commentaries on the Constitution (1833), Justice Joseph Story, appointed to the Supreme Court by James Madison, affirmed the preeminence of the Second Amendment: "The right of the citizens to keep and bear arms has justly been considered as the palladium [safeguard] of the Liberties of a Republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the People to resist and triumph over them."
Jefferson asked rhetorically: "What country can preserve its liberties, if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
"If the representatives of the people betray their constituents," Alexander Hamilton observed, "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." He added, "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped."
Historically, there have been no successful attempts to modify the Second Amendment's assurance of the innate rights of the people to defend their Liberty, but there are now threats to do so. That is precisely why in the debates over ratification of the Bill of Rights, as previously noted, many of our Founders expressed concern that the enumeration of such rights might imply to future generations that they were subject to amendment.
That notwithstanding, Second Amendment rights have most certainly been subject to much alteration by judicial misinterpretation and outright activism.
Given the Supreme Court's rejection of the Democrat Party leadership's effort to redefine "militia" as something other than "the People," there is now a new rationale for repealing the Second Amendment.
That argument is this: At the time the Second Amendment was ratified, the most sophisticated weapon was a flintlock — a far less deadly weapon than the "black assault rifles" used in the extremely rare but high-profile mass murders today, which Democrats exploit as political fodder in order to stir up their anti-2A constituents advocating repeal.
In my recent debate with a wealthy suburban leftist after one such attack, he insisted, "If not repeal, I think the best solution would be to amend the Second Amendment so that the arms mentioned are limited to those from when the amendment was written. Then anyone who wanted could have a musket or a flintlock — nothing more."
I responded, "Using your 'logic,' the First Amendment's freedom of speech would only apply to the town crier, and freedom of the press would only apply to opinions written with a quill pen on parchment?"
Statists in the executive, legislative and judicial branches, who favor a centralized socialist government, endeavor wherever possible to enfeeble and erode the Second Amendment. For in doing so, they move ever closer to their ultimate objective (and that of their uninformed constituents) — disarming the American people and demoting our constitutional standing as "citizens" to our ancestors' standing as "subjects."
Mark Alexander is the executive editor of the Patriot Post.