Debunks

The 2nd Amendment is within “the first eight amendments.”

The Court also adopted the Harlan dissent in POE v. ULLMAN 367 US 497 that: “...‘liberty’ is not a series of isolated points...in terms of the taking of property; the freedom of speech, press and religion; the RIGHT TO KEEP and BEAR ARMS; the freedom from unreasonable searches and seizures.... It is a rational continuum which...includes a freedom from all arbitrary impositions ...”[emphasis added] (Notice no reference to any state government militia.)

On the same page, the Supreme Court invokes the 9th Amendment to curtail the powers of the states, through the 14th Amendment. Historically, the purpose of the 9th Amendment was to preserve and carry intact into perpetuity, those rights already freely enjoyed by Americans and Englishmen as of the time of the American Revolution. By virtue of the English Bill of Rights of 1689, the long established right to keep and bear arms was clearly recognized and protected, with the 9th Amendment of the US Bill of Rights perpetuating the old English rights in America. The Supreme Court has held that: “In many cases...this Court has looked to the FUNDAMENTAL nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States” GIDEON v. WAINWRIGHT (1963) 372 US 335 and that: “All FUNDAMENTAL rights comprised within the term liberty are protected by the federal Constitution from invasion by the states.” [emphasis added] PARENTHOOD (supra); hence, the 2nd Amendment forbids the states from controlling guns if our right to guns for defense of our lives from the violence of criminals or predatory animals is “fundamental” not trivial.

In the said PARENTHOOD case, speaking of the right to reproductive autonomy, the US Supreme Court used the following language (in pertinent part, from perspective of the right to self-defense):

“Our law affords constitutional protection to PERSONAL DECISIONS. ... Our cases recognize ‘the right of the individual ... to be free from unwarranted governmental intrusion into matters ... fundamentally affecting a person’ .... These matters involving the most intimate and PERSONAL CHOICES a person may make in a lifetime, choices central to PERSONAL DIGNITY and AUTONOMY, are central to the liberty protected by the 14th Amendment.” (P. 2807) [emphasis added]

Let us ANALOGIZE this reasoning to situations bearing upon the right to self-defense: a garage in Brooklyn was raided by a criminal who was NOT SATISFIED TO ROB its attendant, caused him to take a supine position, whereupon he committed an indecent, unsanitary act all over him; criminals have vented their sadism upon their victims, in grotesque and unseemly ways. It is here submitted, for your consideration, that THE QUESTION OF WHETHER TO PEACEFULLY SUBMIT (“better Red than dead”), to robbery or sexual violation (and/or to your own murder) OR TO FORCEFULLY RESIST IS A “personal decision ...fundamentally affecting a person...” bearing upon “...personal dignity and autonomy....” The individual citizen literally wagers his life on his choice. (Arguably, government had gone into partnership with the criminal, providing for his personal safety on the job [as per O.S.H.A.] by disarming his victims prospectively.) On the same page of PARENTHOOD case, the Court notes that abortion is an act “fraught with consequences for others ...” and that it has effects upon society, but that “... the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law ...” thus, said consequences and effects “... cannot alone be grounds for the State to insist she make the sacrifice ...”. [emphasis added]

(Is being robbed, or forcibly sodomized, “unique”?)

By this reasoning, the authoritarian-collectivists’ argument that repeal of victim disarmament laws is dangerous, is outweighed by the unique quality of the existential right to self-defense against being robbed, sexually defiled, or murdered. In PARENTHOOD, the Court held that: “...a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.” [emphasis added] In GIDEON (supra), addressing the 6th Amendment, the Court held that: “...lawyers in criminal courts are necessities, not luxuries” for people defending themselves from criminal accusations. Can we analogize this to guns being “necessities, not luxuries” for defense from violence of criminals or animals? Or potential political usurpation? Enter the mind of a burglar, at 2 a.m.: if a home of pacifists on your left had window signs proclaiming: “THERE ARE NO GUNS IN THIS HOUSE” and you knew that all residents of the home on your right belonged to the NATIONAL RIFLE ASSOCIATION, which home would you rather break into?

In Hickman v. Block (1996) 81 F.3d 98, the 9th Circuit Court of Appeals (IGNORING THE US SUPREME COURT in its aforequoted cases) held that the 2nd Amendment protects only a right of the states against the US government. The Supreme Court denied certiorari [awaiting a better case?]. 6 days after the Hickman case, another judge of the same 9th Circuit Ct. of Appeals said in the case of US v. GOMEZ, 81 F. 3rd 846 (at P. 854, note 7) that:

“The Second Amendment embodies the right to defend oneself and one’s home against physical attack.” [emphasis added]

Qua what arms the people have rights to keep and bear, the US Supreme Court said in US v. MILLER (1939) 307 US 174 that they should be “ordinary military equipment...AYMETTE v. STATE 2 Hump. [21 Tenn] 154, 158.” [emphasis added] The AYMETTE case, which the Supreme Court approvingly adopted declares: “the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments on their rights.” [emphasis added] Note that every army uses handguns and rifles. Guns were among the world’s first machines with moving parts, (though more easily made now with modern “know-how”). Guns were not new to Columbus nor to his grandfather. They are simple machines, easily made. (The M-1 Carbine was invented by a prisoner, in prison, for moonshining; convicts have secretly made pistols [including submachineguns] in prison workshops.) The accumulated knowledge of the gunsmith is not secret; it is among the world’s freely available engineering data. If criminals had no guns, they’d arm themselves using that information and access to the hardware stores of America; thus the FUTILITY of “gun control” philosophy: the disarmament of criminals is absolutely IMPOSSIBLE. PERMANENT REMOVAL FROM AMERICA OF VIOLENTLY FELONIOUS RECIDIVISTS CAN REDUCE BLOODY CRIME IN AMERICA. Crime comes from bad people, not tools.

The repressionists want to remove guns, saying they are sometimes used to facilitate crime. They fail to understand that the actual weapon is the HUMAN MIND, whose cleverness has not been controlled nor restrained (even in prison). This mind expresses itself perseveringly, into the manifestation of its felt needs or desires, and it has FOREVER to do the job that it selects (e.g., the art of the gunsmith/merchant). Prohibition is futile.

In JOHNSON v. EISENTRAGER (1950) 339 US 763, the US Supreme Court held that the US Bill of Rights did not protect German enemy aliens, as:

“Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, RIGHT TO BEAR ARMS as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.”[1] [emphasis added]

Observe that the Supreme Court finds no need to refer to any state government militia; this holding, and the choice of words in which it is expressed, concern PERSONAL RIGHTS, not rights of state governments against Uncle Sam. The Supreme Court has acknowledged rights to personal defense, as shown forth in the 2nd Amendment. As early as 1857, that Court said that CITIZENS are:

“... entitled to the privileges and immunities of citizens ...” and have “...the full liberty of speech ... to hold public meetings upon political affairs, and TO KEEP AND CARRY ARMS wherever they went.” [emphasis added]
Chief Justice Roger Taney DRED SCOTT v. SANFORD 60 US 393 (1857)

Thus the Court finds the individual citizen’s rights protected from violation by any government, be it federal, state or local. Colonial America had its own gun control laws: “every...inhabitant of this colony provide for himself and each under him able to bear arms, a sufficient musket...with [ammunition] and for each default ...forfeit ten shillings.” (New Plymouth 1632) For the sake of safety, in the spirit of today’s mandatory seatbelt legislation, colonial gun control laws prohibited going to work, or to church, in an unarmed condition. (Virginia 1631) Clergymen checked to make sure that their congregants were well armed. These laws were socially paradigmatic as, since 1512, English boys aged 7 to 17 were required to be armed, at their fathers’ expense, with adapted longbows (deemed devastating since the 1346 Battle of Crecy; guns being less accurate, before invention of rifling) and “bring them up in shooting”. Male adults were required to be armed. (Statute of Winchester, as amended by King Henry VIII)[2]

Qua modern safety, a University of Chicago study[3] of 16 years’ FBI statistics nationwide showed that states (30 of the 50) enacting laws to grant licensure for carrying concealed firearms to all applicants (except judicially certified lunatics and criminals) have resulted in precipitous declines of their violent crime rates. Adjoining jurisdictions, that did not repeal “gun control” laws had immediate, sharp increases of violent crime. None of the said 30 states has ever changed its mind and reverted.

Supporting “gun control” is like supporting drunken driving: its dangerous and reduces your chances to survive. From Kitty Genovese, in N.Y.C., to Reginald Denny in L.A., citizens have found out the hard way that police can be away for a long time when you need them. Should your life depend on other people who are not around? Is the right to self-defense limited to saints, angels and perfect Americans? The elite? Does discriminatory licensure of the right to effectively defend your life provide “...equal protection of the laws”? Some say that “gun control” is a “cultural war” that will result in an America of strong individual rights or in a state of social planning, wherein the docile citizen is humbly obedient; his constitutional rights slowly forgotten.

Some excerpts from the writings of Dr. Stephen Halbrook are very enlightening; (Dr. Halbrook is an eminent scholar of constitutional history and a successful trial attorney):

“St. George Tucker, the first major commentator on the Bill of Rights (NEW YORK TIMES v. SULLIVAN, 376 U.S. 254, 296-97 [1964]), explained the Second Amendment as follows:

‘The right of self-defense is the first law of nature.... Wherever ... the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty...is on the brink of destruction.’”

Dr. Halbrook observes: “In his concurring opinion in DUNCAN v. LOUISIANA 391 US 145 (1968) Justice Black recalled the ... words of Senator Jacob M. Howard in introducing the [14th] amendment to the Senate in 1866: ‘The personal rights guaranteed and secured by the first eight amendments of the Constitution such as...the right to keep and bear arms....The great object of the first section of this amendment is to restrain the power of the States and compel them at all times to respect these great FUNDAMENTAL guarantees.’...The same two-thirds of Congress which proposed the Fourteenth Amendment also pass- ed an enactment declaring that the FUNDAMENTAL rights of ‘personal liberty’ and ‘personal security’ include ‘the constitutional right to bear arms.’ Freedmen’s Bureau Act §14, 14 Stat. 176 (July 16th, 1866) [emphasis added]

“No court has ever considered Congress’ declaration, contemporaneously with its adoption of the Fourteenth Amendment, that the rights to personal security and personal liberty include the ‘constitutional right’ - i.e., the right based on the Second Amendment- ‘to bear arms.’ Until now, this declaration in the Freedmen’s Bureau Act has been completely unknown both to scholars and the courts.” Dr. Halbrook also cites the finding of Congress in the Firearms Owners’ Protection Act that: “The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”[4]

Dr. Halbrook states that:

“In recent years it has been suggested that the Second Amendment protects the ‘collective’ right of states to maintain militias, while it does not protect the right of ‘the people’ to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century for no known writing surviving from the period between 1787 and 1791 states such a thesis.”[5] Six years after Dr. Halbrook wrote those words, the Supreme Court explicitly supported him in the VERDUGO case. (supra)

Another ploy of the authoritarian-collectivists argues that the Bill of Rights protects only “sporting guns” not defensive handguns or rifles; can we believe that the Founders meant to follow an amendment securing freedoms of speech, the press and religion with an amendment protecting possession of sporting goods?[6] By assuring an armed populace, the Founders physically put sovereignty into the hands of the citizens. US Supreme Court Justice Joseph Story (1811-1845) said: “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...enable the people to resist and triumph over them.”[7] His view was adopted by the US Supreme Ct in US v. MILLER (supra), together with that of Judge Thomas Cooley who reiterated that idea, adding: “The meaning of the provision...is that the people ... shall have the right to keep and bear arms and they need no permission or regulation of law for the purpose.” The Constitution no more allows any government to control guns than to edit the Bible or control who has one (It should be borne in mind that any conflict between the Constitution of 1787 [e.g. interstate commerce clause] and the Bill of Rights must be resolved to favor the Bill of Rights because those rights were changes to the original instrument).

In US v. CRUIKSHANK 92 US 542 (1875), felonious convictions of some Klansmen for violation of the 1st Amendment (right of assembly), and of the 2nd Amendment (the right to keep and bear arms), were reversed by the US 5th Circuit Ct. of Appeals, on the grounds that it was neither pled nor proven that THE STATE had, by its laws, abridged the rights of US citizens (Defendants being private citizens), and FOR THAT REASON,[8] the 14th Amendment could not apply the 1st nor the 2nd Amendment to the case at bar; i.e., the 14th Amendment only protected citizens of Louisiana from the GOVERNMENT of that State, not from their fellow citizens. That Court pointedly implied that if officers of the State of Louisiana had, BY ITS LAWS, violated the 1st or 2nd Amendment, they would have feloniously violated the 14th Amendment and the Enforcement Act of May 31, 1870.

Note that the US Supreme Court affirmed this case. In so doing, it held that the rights of the 1st and 2nd Amendments long antedated the Constitution, such that when created, the US government found them in being.

Accordingly, these rights are older than the Constitution, which neither created nor granted them to the citizenry, any more than the Constitution created the moon nor granted the stars.

In affirming the Cruikshank holding, the US Supreme Ct. said that the 2nd Amendment:

“…has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against ANY VIOLATION BY THEIR FELLOW CITIZENS of the RIGHTS IT RECOGNIZES to…the powers which relate to merely…municipal legislation… internal police.” [emphasis added].

The aforesaid Hickman panel of the 9th Circuit Ct. of Appeals takes the “states’ rights” point of view of the 2nd Amendment; i.e., it reads the Amendment as though it said (only):

“The US government shall have no authority to deprive the government of any state of its military forces” [thus repealing Art. I §10 sub-§3, qua states keeping troops]

One might ask the Hickman court to consider that:

1. If states’ rights is the correct concept of the 2nd Amendment, then, definitionally, ONLY the US government is able to violate that right [9], so how could the US Supreme Ct. contemplate “any violation BY THEIR FELLOW CITIZENS of the rights it recognizes”? (If Bill owes Joe $100 on a promissory note, Bill is the only person in the world who could possibly violate Joe’s rights under the note [by failing to pay according to its terms]).

2. If the US government violated that 2nd Amendment right (allegedly of state governments) how could the victimized governments “look for ... protection against...violation...of the rights it recognizes” to “MUNICIPAL” entities? I.e., under the Hickman court’s view of the 2nd Amendment (a right of the states against the US government), what is the point of states whose 2nd Amendment rights were violated by the US government, in appealing to their counties, towns, and villages, as the US Supreme Court declares (hereinbefore) in Cruikshank? And by what reasoning did the Cruikshank Court refer to “... municipal ... police” to address such a violation? In 1875, the US Supreme Ct. was not promoting a second civil war.

Saying that the 2nd Amendment only limited the powers of Congress, clearly the Court was following its holding in BARRON v. BALTIMORE (1833) 7 Pet. 243 (that the Bill of Rights does not mean what it says). Yet, the author of §1 of the 14th Amendment, Rep. John A. Bingham, explained in the House of Representatives on March 31st, 1871, that it was his intention to overthrow BARRON v. BALTIMORE when he wrote the 14th Amendment, thereby to curtail the powers of the states by use of its “privileges and immunities” and “due process” clauses, thus to enlarge the personal freedom of the Bill of Rights, quoting verbatim each one of the first eight amendments. When Sen. Jacob Howard introduced the 14th Amendment to the US Senate, he described “the PERSONAL RIGHTS guaranteed and secured by the FIRST EIGHT amendments of the Constitution; such as freedom of speech and the press;...the right to keep and bear arms....The great object of the first section of this amendment is... to restrain the power of the states and compel them...to respect these great FUNDAMENTAL guarantees.”[10] [emphasis added] Let us fleetingly note that the Supreme Court has held that: “A state may not impose a charge for the enjoyment of a right granted by the federal constitution....it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise.” Murdock v. Pa. 319 US 105 Can we analogize?

Though it antedates (1984) the more recent cases hereinbefore considered, qua the earlier cases, this writing is deeply in debt to Dr. Stephen Halbrook whose profound treatise THAT EVERY MAN BE ARMED (University of New Mexico Press) is the leading intellectual light of the freedom of self-defense movement. The rights of self-defense and to its necessary, supportive equipment, can therein be explored to great depth and profit.

In studying the history and jurisprudential development of the right to keep and bear arms, it should be borne in mind that when the US Constitution and Bill of Rights were enacted, during the 1700s, there were NO POLICE anywhere in the USA, nor had police existed in Colonial America, nor in England. The concept of a police force first BEGAN during the 1800s (both in America and in England). Accordingly, during the 1700s, if one were attacked by a violent criminal, a predatory animal, or madman, it was as imperative as it was paradigmatic that he have the means to handle the situation himself, and this was the world that the Founding Fathers knew when they drew the social and political contract that is the US Constitution.

DISPASSIONATE ANALYSIS OF THE AMENDMENT’S
SYNTACTICAL ARCHITECTURE MAY BE
FACILITATED BY THE FOLLOWING ANALOGY:

“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” US Constitution, 2nd Amendment

ANALOGY: A well educated electorate being necessary to the security of a free state,
the right of THE PEOPLE to keep and read books shall not be infringed.

1. Does this say that only voters have the right to read books?

2. Does this say “well educated” only by STATE GOVERNMENT colleges?

3. Does this say that only voters who are professors of state run colleges have the right to read books?

4. Does this say that if you miss an election, it’s ok for the Bureau of Alcohol, Tobacco and Books to knock down your door and steal your books?

If criminals are willing to ignore the laws against robbery; if criminals are willing to disregard the laws against murder, can we rely upon them to obey new “gun control” laws? (or old ones?)

Collectivists, in the expression of their authoritarianism, deny the existence of a right of self-defense, except by ineffective means; it is their belief that if the wolves are eating the sheep, the teeth should be pulled from the mouths of the sheep. They also fear (subliminally) that it is harder to apply the statist philosophy: “authority from the top down, obedience from the bottom up”[11] the people on the bottom are fully armed in their own defense. Then the top must treat them with high respect. The fundamental concern is thus revealed to be sovereignty: WHO IS THE BOSS? Is it A: the citizen, when he invokes his constitutional individual rights (as the heir of they who created government in America) or is it B: his hired security crew, government? Favoring collectivism and authority to coerce social and economic relationships that collectivists like, they choose “B.”

Public safety can be promoted by denying access to polite society by violent recidivistic felons; (control of their tools is impossible: wishful thinking permeated with futility). This can be accomplished by permanent incarceration in secure prisons, or (less expensively) by BANISHMENT behind thousands of miles of water (the old English Botany Bay method) with their return being subject to severe penalty. Full immunity from criminal and civil litigation for acts of armed self-defense is envisioned. This is not copyrighted; just the 1st Amendment: you are free to disseminate so much of the foregoing as you see fit.

1. Dr. Stephen P. Halbrook: The Right To Keep and Bear Arms under the 2nd and 14th Amendments: The Framers’ Intent and Supreme Court Jurisprudence (hereinafter set forth as: “Framers’ Intent”)

2. David T. Hardy: Origins and Development of the 2nd Amendment Blacksmith Pub.

3. John R. Lott, Jr.: Journal of Legal Studies Jan 1997; More Guns Less Crime John R. Lott, Jr. University of Chicago Press 1998, 2nd edition 2000.

4. All aforequoted material on this page is of Framers’ Intent (supra).

5. Halbrook: THAT EVERY MAN BE ARMED, University of New Mexico Press 1984.

6. David B. Kopel: The “Assault Weapon” Panic.

7. 3 J. Story COMMENTARIES ON THE CONSTITUTION 746 Ancient Athenian citizens believed that the Palladium, a statute of Pallas Athena in front of Athens, would protect them from attack, as long as it was preserved.

8. §1 of the 14th Amendment to the U.S. Constitution provides: “… No STATE shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [emphasis added]

9. Such as by stripping away a state government’s militia for federal use (e.g., as President Eisenhower did to Arkansas’ Governor Orval Faubus, in 1957, and Kennedy did to Alabama’s Governor George Wallace, in 1963; did either Governor, or either of their respective Attorneys General, or ANYONE assert that the state governments were protected by the Second Amendment?)

10. Cong. Globe 23 May 1866; Halbrook: THAT EVERY MAN BE ARMED (supra).

11. Adolf Hitler.