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The right of the People... shall not be infringed

By Mark Alexander
web posted June 2, 2008

"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." —Second Amendment to the United States Constitution

There is no more important constitutional issue than that of defending the plain language and original intent of the Second Amendment.

Justice Joseph Story, appointed to the Supreme Court by our Constitution's principal author, James Madison, wrote in his Commentaries on the Constitution of the United States (1833), "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the 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."

It is no small irony that the latest assault on the Second Amendment is taking place in our nation's capital. The Supreme Court will announce its decision in the case of District of Columbia v. Heller in June, and that decision will likely have far-reaching implications for the "interpretation" of our Constitution's most important provision.

And make no mistake, the newly-emboldened Left, with Barack Hussein Obama leading the charge, is gunning for those rights. Obama supports the D.C. regulations because he, "...wanted to make sure that local communities were recognized as having a right to regulate firearms... The notion that somehow local jurisdictions can't initiate gun laws isn't born out by our Constitution."

Does he suggest, by extension then, that our national Constitution can be amended by judicial dictates and local ordinances?

Of course, in addition to serving on the Woods Fund board with Weather Underground terrorists William Ayers and Bernardine Dohrn, Obama also served on the board of the Joyce Foundation, which since 2000, has given more than $15 Million to radical gun control organizations and is closely linked to the Soros Open Society Institute, which advocates a worldwide ban on civilian firearm ownership.

Indeed, the Second Amendment is "the palladium of the liberties of the republic," and those who fail to support it as such, and reject detractors like Obama, do so at great peril to themselves and the liberty of future generations of Americans.

The subject of this dispute is the Washington, DC, "Firearms Control Regulations Act of 1975," which banned handguns and mandated that all other firearms, including shotguns and rifles, be kept "unloaded and disassembled or bound by a trigger lock," ostensibly to deter so-called "gun violence." D.C.'s FCRA actually prohibits a person who owns a legal handgun (pre-1976 grandfathered one) from transporting the handgun from one room to another in his or her own home.

Of course, suggesting that violence is a "gun problem" ignores the real problem—that of socio-pathology and the Leftists who nurture it. (See the Congressional Testimony of Darrell Scott, father of Rachel Scott, one of the children murdered at Columbine High School in 1999.)

Will that decision comport with the Constructionist view (original intent) of our Constitution, or will it be another adulterated interpretation of the so-called "Living Constitution", the ACLU's perverted distortion of our Constitution by its cadre of judicial activists?

It is our hope that the Court will affirm the ruling by the D.C. Circuit Court of Appeals, which held that the District's ordinance banning possession of handguns is unconstitutional under the Second Amendment.

Though every constitutional constructionist knows that the Second Amendment assures an individual right to keep and bear arms, militias being the people, the ACLU's "Living Constitution" mob argues that "the people" means "the state militia," as outlined on the ACLU's website under "Gun Control": "We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias. ... The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns."

Well, they may believe that, but in the inimitable words of Founder John Adams, "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."

It seems the lawyers at the ACLU are always viewing the First Amendment through a wide-angle lens, while they view the Second through a pinhole. Alas, they have it backwards.

In the 1788 Massachusetts Convention debates to ratify the U.S. Constitution, Founder Samuel Adams stated: "And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."

That same year, James Madison wrote in the Federalist Papers (No. 46), "The ultimate authority... resides in the people alone. ... The advantage of being armed, which the Americans possess over the people of almost every other nation ... forms a barrier against the enterprises of ambition."

Similarly, Federalist Noah Webster wrote: "Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state."

To understand how the right to bear arms was understood in proper context as an individual right, consider some of the earliest state constitutional provisions both before and after the ratification of the Bill of Rights: Pennsylvania—That the people have a right to bear arms for the defence of themselves and the state (1776); Vermont—[T]he people have a right to bear arms for the defence of themselves and the State (1777); Kentucky—[T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792). Tennessee—[T]he freemen of this State have a right to keep and bear arms for their common defence (1796) and, Connecticut—Every citizen has a right to bear arms in defense of himself and the state (1818).

These are not references to state guard units as the ACLU insists.

Though the Supreme Court rarely referenced the Second Amendment in the first hundred years of our nation's existence, because its meaning was understood, in one early reference, Dred Scott v. Sandford (1856), the Court noted, "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union...the full liberty...to keep and carry arms wherever they went." The implication is that the right to carry arms was considered to be universal right for U.S. citizens.

Of course, Washington, D.C. is not the only major city violating the Second Amendment. New York City has restrictive gun regulations, but consider this comment from Timothy Dwight, President of Yale College, from an 1821 commentary on American life: "In both New-England, and New-York, every man is permitted, and in some, if not all the States, is required to possess fire arms."

Times have indeed changed, and not in the interest of liberty.

If you know some of those Chardonnay-sipping elitists who insist that guns should be banned, get them a few of these "Gun Free Household" stickers for their front and back doors.

Speaking of Chardonnay, here's an interesting fact: Alcohol-related traffic deaths outnumber homicides with guns by a wide margin. In the latest year of record, there were 12,253 homicides with firearms (many of which involved alcohol) but 16,885 alcohol related highway fatalities. (Perhaps the ACLU should be fighting for a five-day waiting period to purchase alcohol?)

Here's another inconvenient truth for the Leftist gun-grabbers: The U.S. ranks 41st in the world in homicides but first in the world in private gun ownership (39 percent of households). The firearm homicide rate in the United States was 4.17 per 100,000 in 2005. But Israel, which is awash in so-called "assault weapons," has a total homicide rate of 2.62 per 100,000.

The National Institute of Justice estimates that Americans use firearms in self-defense approximately 2.73 million times per year. While firearms are used in 67 percent of illegal homicides in the United States, they are used in 99 percent of justifiable homicides. In other words, bad guys use guns sometimes, but good guys use guns almost all the time.

Put another way, smart guys protect their families with "Second Amendment Security".

On this point, I would argue that gun ownership is not only a right, but a duty and obligation of all Patriots. After all, we are the Militia.

(For good reference pages on the Second Amendment, see Sources on the Second Amendment and Brief Amicus Curiae in DC v Heller, both by my colleague Eugene Volokh, Professor, UCLA Law School. Read Charlton Heston's comments on the Second Amendment, 1997.) ESR

Mark Alexander is the executive editor of the Patriot Post.


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