A. The unalienable right to freedom from violent harm, and
the right to self-defense, both exist before and outside of secular
government.
1. Torah: Exodus 22:2.
2. Talmud: Jewish law set forth in the Talmud states, “If someone comes to kill you, arise quickly and kill him.” (Talmud, Tractate Sanhedrin. 1994,2, 72a; The Babylonian Talmud: Tractate Berakoth. 1990, 58a, 62b).
3. Roman Catholic Doctrine: Christian doctrine has long
asserted the right and duty of self defense. “Someone who defends his
life is not guilty of murder even if he is forced to deal his aggressor
a lethal blow.” See Catechism of the Catholic Church 1994, sections 2263-65 (citing and quoting Thomas Aquinas).
4. Protestant Doctrine: Individual has personal and
unalienable right to self-defense, even against government. Samuel
Rutherford, Lex, Rex [1644]1982, pp. 159-166, 183-185 (Sprinkle
Publications edition.) Jesus advised his disciples to arm themselves in
view of likely persecution. Luke 22:36.
B. John Locke’s Second Treatise of Government (1690)
aimed at reforming Britain’s monarchy and parliamentary system and
limiting the power of government, and profoundly influenced the
Founders and all Western Civilization. John Locke explained that civil
government properly exists to more effectively protect the rights that
all individuals have in the “state of nature.” The individuals have the
rights to life, liberty, and property. They give civil government the
power over themselves only to the extent that it better protects those
rights. Thomas Jefferson, author of the Declaration of Independence, specifically declared that the ideas of John Locke’s Second Treatise were “generally approved by the citizens of the United States.”Jefferson mandated that Locke’s Second Treatise be taught in theUniversity of Virginia.
C. Christian religious thinkers, such as Samuel Rutherford (in Lex, Rex,
1644) argued that man’s rights come from G-d. Using Biblical principles
and examples, they argued against the notion that kings ruled by divine
right. To be legitimate authorities, all governments must uphold man’s
rights and do justice. Otherwise, the people owe a lawless and
tyrannical ruler no allegiance at all.
D. Cicero, Rome’s leading orator, had early argued that
the right to self-defense was natural and inborn, and not a creation of
the government.The right to use weapons was a necessary part of the
right to self-defense — any view to the contrary was silly nonsense.
[Stephen P. Halbrook, That Every Man Be Armed: The Evolution of A Constitutional Right (1984), p. 17, fn 76-77.]
E. The right to keep and bear arms simply implements the
unalienable right to individual self-defense against aggression of any
kind. The Second Amendment refers to “the right of the people” (not the
state) as a pre-existing right that government must respect.
F. The United States Supreme Court, in United States v. Verdugo-Urquidez,
indicated that the word “people” in the Second Amendment referred to
individuals, not to states. [494 U.S. 259 (1990)] (This was not a
holding or ruling of law, but an observation by the Court).
A. The Second Amendment protects a fundamental right and
should be read broadly because it implements the right of self-defense.
Self-defense is the ultimate right of all individuals to preserve life.
The rights to a free press, free speech, assembly, and religion are
extremely important — but none of them matters very much if you can’t
defend your own life against aggression. None of them matters very much
when an evil government is fully armed and its citizens are disarmed.
B. Article I, Section 8, clauses 15 and 16 of the U.S.
Constitution refer to Congress’s powers concerning the state militias.
Clause 15 empowersCongress to “call forth” the state militias into
national service for specific purposes. Clause 16 empowers Congress to
organize, arm and discipline the state militias, and to govern the
militias while they are in national service. The Second Amendment
confines Congress’s power by guaranteeing that the Congress cannot
“govern” the militias right out of existence and thereby disarm “the
people.”
THIRD: The Second Amendment refers to “a well-regulated
militia.”The right of the people to form citizen militias was
unquestioned by the Founders.
A. The Federalist Papers, No. 28: Alexander Hamilton
expressed that when a government betrays the people by amassing too
much power and becoming tyrannical, the people have no choice but to
exercise their original right of self-defense — to fight the
government.[Halbrook, p. 67]
B. The Federalist Papers, No. 29: Alexander
Hamilton explained that an armed citizenry was the best and only real
defense against a standing army becoming large and oppressive.
[Halbrook, p. 67]
C. The Federalist Papers, No. 46: James Madison
contended that ultimate authority resides in the people, and that if
the federal government got too powerful and overstepped its authority,
then the people would develop plans of resistance and resort to arms.
[Halbrook, p. 67]
D. There was no National Guard, and the Founders
opposed anything but a very small national military. The phrase
“well-regulated” means well-trained and disciplined — not “regulated”
as we understand that term in the modern sense of bureaucratic
regulation. [This meaning still can be found in the unabridged Oxford English Dictionary, 2d ed. 1989, Vol 13, p. 524, and Vol 20. p. 138.]
E. The Federalists promised that state governments and
citizen militias would exist to make sure the federal military never
became large or oppressive. To say that the National Guard replaces the
notion of the militia runs contrary to what the Founders said and
wrote.
F. The Third Amendment: Expressly restrains the federal
government from building a standing army and infiltrating it among the
people ...and at the people’s expense ... in times of peace. The Third
Amendment runs against the idea of a permanent standing army or
federalized National Guard in principle, if not by its words.
FOURTH: The Second Amendment begins with the phrase “A
well-regulated militia being necessary to the security of a free
State.” Some people argue that this phrase limits the right to keep and
bear arms to militias only ... which they say means the National Guard.
Very recent research shows, however, that it was the style of writing
legal documents in the late 1700’s to include a preamble. The
Constitution has a preamble, the Bill of Rights has a preamble — yet
people don’t argue that the Constitution is limited by the preamble.
Professor Eugene Volokh at the UCLA Law School has examined numerous
other state constitutions of the same general time period, and observed
this kind of preamble language in many of them. (The Commonplace Second Amendment,
73 N.Y. Univ. Law Rev. 793-821 (1998)). The preamble states a purpose,
not a limitation on the language in these government charters.
A. Examples:
- New Hampshire’s Constitution in 1784 contained a preamble for
the freedom of the press: “The Liberty of the Press is essential to the
security of freedom in a state; it ought, therefore, to be inviolably
preserved.”
- Rhode Island’s 1842 state constitution recited a preamble
before its declaration of the right of free speech and press: “The
liberty of the press being essential to the security of freedom in a
state, any person may publish his sentiments on any subject, being
responsible for the abuse of that liberty...”
- New Hampshire’s Constitution in 1784 also contained a detailed
preamble and explanation of purpose for its right to a criminal trial
in the vicinity where the crime occurred.
- The Massachusetts Constitution of 1780, the 1784 New Hampshire
Constitution and the 1786 Vermont Constitution, all contained preambles
or explanations of the right of freedom of speech and debate in the
state legislatures.
- The New Hampshire Constitution also gave an explanation, right in the text, for why there should be no ex post facto laws.
B. The Second Amendment falls right within the style of legal
drafting of the late 1700’s. The “militia” clause emphasizes the
individual right to keep and bear arms by explaining one of its most
important purposes. The militia clause does not limit the right.
FIFTH: Before the Civil War and the Fourteenth
Amendment, many states enacted laws that made it illegal for slaves and
for free black people to possess firearms (unless they had their
master’s permission or a government approval). [See list, with sources
in law reviews, in Gran’pa Jack No. 4 ]
A. The Second Amendment did not protect black people then,
because(1) it was understood to limit the federal government’s power
only and (2) black people were not considered citizens whose rights
deserved to be protected. [Dred Scott decision, 60 U.S. 393
(1857) (Judge Taney observed that if blacks had the privileges and
immunities of citizenship, then they would be able to freely possess
and carry arms ... unthinkable to Southern slave owners.) [Halbrook,
pp. 98, 114-15]
B. The Second Amendment was designed by people who did
not want to become slaves to their government, but they were
unfortunately and tragically willing to permit private slavery in some
states. Now that slavery is abolished,however, all citizens of all
races should enjoy the Second Amendment’s legal protection against
despotic government.
SIXTH: Several Federal Circuit Courts of Appeal have
held that theSecond Amendment does not confer an individual right, but
only a collective right of states to form a militia. The federal court
decisions cite United States v. Miller as precedent. The 1939 Supreme Court case, United States v. Miller, did not make that ruling. Even in Miller,
where only the prosecution filed a brief and the defendant’s position
was not even briefed or argued to the Court, the Supreme Court held
that the federal government could only regulate firearms that had no
military purpose. [307 U.S. 174 (1939)] [See JPFO special report about Miller case]
A. Nowadays, gun prohibitionists want to illegalize firearms
unlessthey have a “sporting purpose.” The “sporting purpose” idea was
part of the Nazi Weapons Law of 1938. JPFO has shown that the U.S. Gun
Control Act of 1968 imported much of its organization, content, and
phrasing, from the Nazi Weapons Law. [See ... Zelman, Gateway to Tyranny]
B. In contrast, even under the U.S. v. Miller
case, the Second Amendment protects the individual right to keep and
bear military firearms. Learn how the federal courts deceptively and
misleadingly employed the Miller decision to deny the individual right to keep and bear arms in Barnett, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 Cumberland Law Review 961-1004 (1996).
C. A federal judge recently struck down a federal “gun control” statute as unconstitutional in United States v. Emerson,
46 F. Supp. 2d 598 (N.D. Tex. 1999). In his scholarly written opinion,
District Judge Cummings exten-sively reviewed the law and historical
foundations of the Second Amendment to conclude that the right to keep
and bear arms protected by the Second Amendment is an individual right.
The Emerson decision remains pending an appeal in the Fifth Circuit as
of this date.
Before a government can become a full-blown tyranny, the
government must first disarm its citizens. The Founders of this nation,
from their own experience, knew that when government goes bad, liberty
evaporates and people die ... unless the people are armed.
CHALLENGE TO AMERICANS
As you read the Constitution and the Bill of Rights:
(1) Look at the enumerated powers of the federal government;
(2) Look at the express limitations on federal power as set forth in theSecond, Ninth, and Tenth Amendments;
(3) Ask yourself, where does the federal government get any power at all to regulate firearms?
(4) Ask yourself, why don’t the high school and college
textbooks devote any time to the history, philosophical basis and
practical meaning of the Second Amendment?
And then consider that law students and future lawyers likewise have
received precious little education about the Second Amendment.
Realize, too, that the judges know just about as little. Then
imagine how little the average American knows — based on the average
public school coverage of the Constitution.
The protection of our sacred right of self-defense against
both petty criminals and oppressive government — the right of civilians
to keep and bear arms — is in your hands.
The Bill of Rights Sentinel, Fall 2001, pp. 31-33