The Right to Fighting Arms
This is a long article. Here is a summary:
In 1789, the 1st U.S. Congress wrote the Bill of Rights out of political necessity. The new government was on tenuous footing. A Bill of Rights was needed to relieve public fears that the new government might abuse its expanded powers. These historical facts logically guide interpretation of indistinct provisions of constitutional law. The law means today what it meant to the people who ratified it. The 2nd Amendment protects the citizen right to fighting arms suitable for defense of self and liberty.
The meaning of the 2nd Amendment is uncomplicated and easily deduced from incontestable historical context:
1783: At the end of the Revolutionary War, the thirteen sovereign states were barely united under the Articles of Confederation. The Confederation Congress lacked the necessary power to effectively govern.
England blocked American shipping in the West Indies. Spain closed the Mississippi River. Barbary pirates hijacked American ships and held the crews for ransom. Westward settlement caused constant Indian conflict. States quarreled over boundaries and trade practices. War debts went unpaid. Debt, currency crises, and tax delinquency fueled political unrest.
There was no prevailing national ethos. People were politically attached to their native states, distrusted strong centralized government, resented taxes, and feared standing armies.
Summer 1787: Twelve states sent delegates to a Philadelphia convention with instructions to amend the Articles of Confederation to improve the Confederation Congress' ability to manage national problems.
Working in secret, the delegates threw out the Articles of Confederation and instead wrote a new Constitution that created a strong new centralized national government that was empowered to levy taxes, raise a standing army, and command the state militias. At the end of the convention, Elbridge Gerry and George Mason attempted to add a Bill of Rights to the proposed new Constitution, but their motion failed.
September 1787: The Philadelphia convention sent the proposed new Constitution to the Confederation Congress. Richard Henry Lee attempted to add a Bill of Rights, but also failed. The Confederation Congress sent the new Constitution to the states for ratification.
This resulted in nine months of public debate, during which nationalists (Federalists) and state's-rights advocates (Anti-Federalists) published some of the most important political discourse in human history.
Federalists wanted a sovereign republic with a strong centralized government. The new Constitution shifted power from the states to the national level. Federalists argued that civil rights protections were not needed because the new national government was not empowered to infringe on civil rights, and because the people and states retained all powers not expressly granted to the national government.
Anti-Federalists wanted a republic of sovereign states. They wanted structural amendments to the new Constitution that would shift power back to the states, and they wanted a Bill of Rights to protect civil rights.
June 1788: the necessary minimum of nine states had ratified the Constitution, but three of those states attached requests for constitutional amendments to their ratification letters. And one-third of the members of Pennsylvania ratification convention published an influential dissent that also called for amendments.
August 1788: The two "most important" states (Virginia [most populous], and New York [biggest port]) grudgingly ratified the Constitution, and also attached requests for amendments to their ratification letters. And, New York sent a letter to every state asking the states to hold a 2nd convention to amend the new Constitution.
During the next several months, the states elected Senators and Representatives, and the People elected a President.
April 1789: The 1st U.S. Congress convened. During his inauguration speech, President Washington asked the new Congress to rely on their "reverence for the characteristic rights of freemen" and "regard for the public harmony" to create a list of civil rights amendments that would ease public concerns about the new government, and send it to the states for ratification. LINK.
May 1789: Virginia and New York both applied to Congress for a 2nd convention. If seven more states applied, the 2nd convention would be held, and anything could happen. Remember - the previous convention had thrown out the entire system of national government and replaced it with a new one.
Representative James Madison spearheaded the amendments effort in Congress. He wrote a list of civil rights amendments and submitted them in the House. He worked to convince the House that the amendments were politically necessary. And he worked to oppose other Congressmen who wanted to add structural amendments to his list.
Madison's amendments goals:
- Relieve public concerns about the borad powers new national government by approving a bill of civil rights amendments to send to the states for ratification.
- During this process, block any structural amendments that would shift power back to the states.
- Avoid political mistakes that would inflame public fears or fuel political opposition to the new federal government.
- Get the job done before seven more states got anxious and applied for a 2nd convention.
Summer 1789: The House revised and condensed Madison's proposed amendments. Then the Senate revised and condensed the House draft. Then both houses approved a final draft of 12 amendments and sent it to the states for ratification. Twenty-seven months later, ten of the twelve were ratified, and became our Bill of Rights.
The first English settlers arrived on American shores in 1607. For the next 182 years, a primary reason for immigration to America was religious freedom. Britain and other European countries believed that a nation should have one religion, and they empowered civil authorities to enforce conformity with that religion. The 1st Amendment was written to assure Americans that would never happen in America.
In 17th and 18th century England, criticism of the government was called seditious libel, and was often prosecuted by the Crown, even unto death. The 1st Amendment was written to assure Americans that would never happen in America.
English colonists came from a legacy of free press, respected as a protection of republican elements of government against monarchical intervention. The 1st Amendment was written to assure Americans that freedom of the press would be preserved in America.
The 1st Amendment also protected the right of Americans to assemble and to petition government without being persecuted.
Even though 17th and 18th century Colonial Americans considered peacetime standing armies and authoritarian control of military power to be instruments of oppression, and even though Americans had just won a long and difficult war of rebellion against a British government that had stationed peacetime standing army troops in their cities and attempted to use those troops to confiscate American weapons at Lexington and Concord, the new Constitution still gave the new American government the power to keep a peacetime standing army and command state militias.
Concern over these military powers was ubiquitous in public debate and overtly expressed by the ratifying conventions of five states. Specifically, 1780's Americans considered peacetime standing armies and "select" militias to be dangerous to liberty, and insisted that government military power remain subordinate to civil power, and asserted the armed citizenry and its militias as the proper source of military power for national defense.
The 2nd Amendment was written to relieve public concerns about the military powers granted to the new government by the new Constitution, by assuring American citizens that the new national government could not disarm them, that their right to arms could not be infringed, and that the body of the People and their militias remained the "best security of a free country" (i.e. would not be displaced in that role by the new standing army or any select militia).
Obviously, the 2nd Amendment protects a right to fighting arms. The subject matter underlying the amendment is military in nature.
The exact wording of Madison's June 8, 1789 proposed "arms" amendment is this: "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 of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
By August 24, 1789, the House had changed it to this: "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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person."
Then the Senate changed it again: "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 House changed the order of the phrases, and changed "country" to "State", and removed "well armed", and added "composed of the body of the people."
Then the Senate removed "composed of the body of the people" and the religion clause.
What was the reason for those changes?
Well, for starters, the 1st Congress changed or condensed all of Madison's list of proposed amendments. If you write a perfect law, and your law must be approved by a committee, you know the committee will edit and change your perfect writing. Guaranteed. Welcome to the human race. Also, some of the changes were needed, and pretty good. Madison wasn't perfect.
A better question is this: What wasn't the reason for the changes?
Answer: It wasn't because the 1st Congress wanted to create an unexpected new restriction on the previously unrestricted citizen right to arms. It wasn't to suddenly restrict the citizen right to arms only to militia service.
How do we know?
- The 1st Congress had 81 members: 39 were Revolutionary War veterans, and 8 of the remaining 42 were signers of the Declaration of Independence. These were not people looking for sneaky ways to restrict the citizen right to arms.
- It is virtually impossible that the 1st Congress en masse was willing to risk the fledgling government by rearranging phrases to sneak in a restriction on the citizen right to arms. Their goal was to calm public fears, not inflame them.
- Based on the accurate historical context described above, what do you think would have happened if Anti-Federalist leaders or the public thought the 1st Congress was attempting to restrict their right to arms rather than protect it? Do you think the new government would have survived that political blunder?
- The founders documented everything. Kept diaries. Exchanged letters. Wrote to newspapers. There is not one shred of documentary evidence that any founding era civic leader ever complained about the clever trick Congress pulled on the American people to restrict their right to arms.
The obvious conclusion: the 2nd Amendment does not limit the scope of protection of the citizen right to arms.
In his Heller dissent, Justice Stevens was either fully uninformed, or happy to elevate his personal preferences above the supreme law of the United States of America. That dissent is meaningless and the People know it.
Okay. What about the citizen right to "non-fighting" arms, for non-militia purposes?
- Read THIS.
- In Colonial America, fishing, hunting, and "fowling" were essential to survival in every colony and state, and remained so in each region until agricultural production developed sufficiently to create a reliable regional food supply. The frontier was constantly expanding, which meant that hunting was never not a necessity across vast expanses of land. Even after agricultural reliance was achieved, hunting traditions persisted in every colony and state, and still do today.
- Right or wrong, westward expansion was the norm, and was always accompanied by conflict with indigenous people. Settlers continually owned and used firearms for imperialist expansion and for defense of self, family, neighbors, and community. Indigenous peoples also owned firearms and were proficient in their use. This paradigm of armed conflict was the norm for 182 years before the 1st Congress convened, and persisted for 110 years after.
- The late 1770's Constitutions of Vermont and Pennsylvania specifically enumerate rights of self defense and hunting: "That the people have a right to bear arms for the defence of themselves and the State;...", and , "That the inhabitants of this State, shall have liberty to hunt and fowl,...".
There will always be people who argue for limits on the scope of 2nd Amendment protection. Only 230 years after the framers saw no need to protect every aspect of a right they took for granted on a daily basis, that degree of specificity is sorely missed. Its absence is a constant source of societal conflict between informed people who recognize the citizen right to arms as the only guarantee of lasting freedom and equality in any society, vs. uninformed people who simply don't know that mechanisms of oppression always eventually arise in every society. Let this be a lesson to future writers of future Constitutions.
An armed citizenry creates a peaceful deterrent to the ambitions of tyrants. To preserve the peace, preserve the deterrent. America has never and will never face a problem that can be resolved by infringing on the right of law-abiding citizens to keep and bear arms.
This article is an accurate portrayal of the people who wrote and ratified the 2nd Amendment, and it is a description of the events and political machinations that formed a temporal impetus for a Bill of Rights. From this context, the meaning of the 2nd Amendment is unambiguous.
It means today what it meant to the people who ratified it.
Valid counter-arguments simply do not exist. It cannot be shown that the founding people created, or intended to create limited scope.
MESSAGE to SCOTUS: You have been too slow. Unjustifiable infringements on this enumerated right have become too common and you have been too slow to act. Today, if my state infringes on my right but I choose to exercise it anyway, I must endure criminal prosecution and a lengthy, expensive appeals process just to obtain a small chance that you will uphold the law of the land and remedy my tribulation.
I am not a criminal! Why do I have violate violations of my constitution in order to achieve constitutional protections? With respect to enumerated rights, your "standing" and "certiorari" requirements are unjust. Remember that you do not serve Legislatures or States; you serve the People.
What is the purpose of enumerating essential human rights if not to create your license to proactively defend them? Jefferson thought so: read THIS. Why is review so constrained for enumerated rights? Marshall had the intelligence and the nerve to claim what rightfully was yours anyway. Use it. And, do not concern yourself with attempts to identify the pace at which your Court should proactively strike unconstitutional law. Rather, allow the pace at which such law is created to set yours.
Also, you know that direct democracy invariably creates a tyranny of the majority. Special attention is warranted when state ballot initiatives violate enumerated protections.
Lastly, keep the peace. On a scale of centuries, what is the most probable path to long-term internal societal peace? Allow enumerated rights to slowly be eroded until citizens resist, or preserve enumerated rights as essential pillars of lasting peace and freedom? See? So easy.
Evidence-based corrections are welcomed. Start by sending an email. The standard: a preponderance of evidence. Credentials irrelevant. Civility required. Thanks. David Spaugh, Oregon, October 2022.