You can’t kill it with a stick: the argument that the “right to bear arms” is a collective right (i.e. it exists for the establishment of a standing militia). This despite the fact that all of the other Amendments in the so-called Bill of Rights confer individual rights. And the U.S. Supreme Court has reaffirmed this interpretation; it’s “established case law.” Stare decisis. But that’s not good enough for gun grabbers. Or John Massaro. The former State University of New York at Stony Brook assistant football coach has written a book called NO GUARANTEE OF A GUN: How and Why the Second Amendment Means Exactly What It Says (AuthorHouse, 2009). As TTAG’s editorial budget can’t cover the $45.99 purchase price, I asked Massaro to share some of the book’s ideas with TTAG’s Armed Intelligentsia. And so he has . . .
“Bear Arms” means “render military service”, as can be found in The Federalist 46. In it, James Madison, the original author of the Second Amendment, is clear in stating that one quarter of the population is “able to bear arms”. (He states that the 25,000-30,000 persons (one hundredth of the whole number of souls) in a regular army are one twenty-fifth of the number “able to bear arms”.) Madison’s connotation of “able to bear arms” must mean “able to render military service” and cannot mean “able to carry weapons”.
This makes sense only when it means that one quarter of the population is “able to render military service”. Madison is saying that one quarter of the population is “able to bear arms” as in “able to render military service”, as would be the case of the ability of the 25 percent who were able-bodied males, since they were the ones who were “able to bear arms” (that is, “able to render military service”). It could not mean “able to carry weapons”, because anybody with the mere ability to grip and transport a gun would be “able to carry weapons”.
If he meant it to mean “able to carry weapons”, then he would be saying that only one quarter of the population was “able to carry weapons”. That would make for a population in which three quarters were so physically handicapped that they were not “able to carry weapons”. Even the 75 percent of the population (that is, women, children, and the aged) that were not “able to bear arms” (that is, “able to render military service”) would be “able to carry weapons”, as long as they had hands that could grip and were able to walk. It is not plausible that 75 percent of Americans were that handicapped back in 1787 or 1788.
In addition, as only one example of many, the Virginia Proposed Declaration of Rights (June 27, 1788), which was intended to be an amendment to the United States Constitution, states, “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Since it would be absurd for the government to require a person to pay another person to carry weapons for the personal use of the former in the former’s stead, the only plausible definition of the term “bear arms” in Virginia, the land of both Thomas Jefferson and James Madison, was “render military service”.
The Fourth Amendment uses “people” to refer to the general populace and uses “persons” TWICE to refer to individuals. It is not plausible that the Framers would use “persons” twice to mean “individuals” after having previously used the word “people” to mean “individuals”. That is why in the Fifth Amendment, which encompasses the rights of accused individuals, the word “person” is used twice, and the word “people” is not used at all. In fact, the unamended Constitution works the same way. It uses the word “people” 2 times, uses the word “persons” 4 times, and uses the word “person” 16 times. Although “persons” is the plural of “person”, “people” must mean something different than “persons”, or the Founders would not have used both terms.
The Framers were quite precise in their word usage. For example, if one looks into the evolution of the First Amendment, he will see that Madison evidently incorrectly cast the rights of free speech and freedom to write as rights of the people (that is, the general populace). That is why the First Congress, evidently seeing the error in Madison’s words, recast these rights as general rights and not as rights of the people (that is, the general populace) specifically. Meanwhile, it kept the rights of assembly and petition as rights of the people (that is, the general populace). It is impossible for a person to assemble. An assembly, by definition, cannot be an individual.
If one looks at the predecessor provisions in the state constitutions and proposed amendments, he will see that the right of assembly was for the purpose of petitioning the government. The right of one person to petition can be easily satisfied by free speech and free press, which are general (and therefore) individual rights.
In the unamended Constitution, the right of electing the House members is that of the people (that is, the general populace). As is stated in the book, election by the people means by the general populace. After all, not every individual votes for the winner of the election, not every individual votes in the election, and not every individual is even eligible to vote in the election to begin with.
In addition, since “people” refers to the general populace and not to individuals, “keep” refers to the storage of weapons by the general populace and not to the private possession of weapons by individuals. This is not inconsistent with the rest of the Constitution. The word “keep” is used twice in the unamended Constitution; in neither Article I, Section 5, Clause 3 nor Article I, Section 10, Clause 3 does “keep” in any way connote personal private possession.
In addition, this connotation of “keep” is perpetuated in modern state statutes, which are listed in the book, that provide for the keeping of National Guard weapons in public depositories.
As far as the public storage of weapons two centuries ago is concerned, “An Act directing a detachment from the Militia of the United States, and for erecting certain Arsenals” (March 3, 1803) appropriated money for arsenals that the President was to cause “to be furnished with such arms, ammunition, and military stores as he may deem necessary.” “An Act making provision for arming and equipping the whole body of the Militia of the United States” (April 23, 1808) authorized the President “to purchase sites for, and erect such additional arsenals and manufactories of arms, as he may deem expedient, under the limitations and restrictions now provided by law[.]”
And General Knox spoke before the House on December 10, 1794, on the deficiencies of the 1792 Militia Act. Among his statements were “The deficiency cannot be supplied from Europe under the present circumstances. The only solid resource to obtain a supply, is the establishment of manufactories in each State.” He stated also, “The deficiency of arms cannot be more forcibly exemplified than that, to arm the militia lately called into service, estimated at fifteen thousand, the number of ten thousand arms have been issued from the public Arsenals.”
As for “A well regulated Militia”, this term is repeatedly used in The Federalist Papers (Number 29), the Anti-Federalist Papers (“John DeWitt V” and “Aristides”), and Luther Martin’s “Genuine Information” to refer to the Article I Militia in the Constitution. And 10 U.S.C. 101 and 32 U.S.C. 101 explicitly state that the National Guard is the Article I Militia. Therefore, using the mathematical principle that if A=B and C=B, then A=C, if “A well regulated Militia” = the Article I Militia and the National Guard = the Article I Militia, then “A well regulated Militia” must = the National Guard.
The 1792 Militia Act was abolished in 1903. The definition of the Militia, which had been codified by that statute, has been modified by the subsequent statutes that have been adopted in place of the 1792 statute. “Militia” has multiple meanings based on context, but that is only in the colloquial sense. (For example, in New York, the term “political party” has a specific statutory meaning. One cannot establish a political party in the statutory sense by simply gathering a bunch of friends in his living room and planning some political activities (even if they get on the ballot or even in most cases win the election)). In the legal and statutory sense, “Militia” means a very specific thing, as defined by the United States Code.
The National Guard is indeed the Militia. It is the same entity as the Organized State Militia of 1789 with a modern name. The Dick Act of 1903 codified the Organized State Militia as the National Guard. 10 U.S.C. 101 and 32 U.S.C. 101 (as well as U.S.C. 311) have been on the books for years and are in accordance with Congress’s Article I power to organize the Militia.
The National Guard, since 1916, has been part of the Army only when it is in the service of the United States. When it is not in the service of the United States, it is the Organized State Militia under the auspices of the state. This point was affirmed in both the case of Dukakis v. Department of Defense (1988-1989), which was denied a hearing by the Supreme Court, and the case of Perpich v. Department of Defense (1987-1990), which was heard and affirmed by the Supreme Court in a case that it actually got right.
In terms of the “Bill of Rights”, there are no such words on that document. The document is entitled simply “Amendments to the Constitution of the United States”. If one goes to Washington, D.C., to see the actual original document that contains the amendments that were sent to the states for ratification, he or she will see that there were actually 12 original amendments. The first one (relevant to increases in representation in the House of Representatives) was never ratified, and the “second” amendment (prohibiting members of Congress from increasing their own pay) was not ratified until 1992. (It is now the Twenty-Seventh Amendment.) These are hardly individual rights.
In addition, this means that the Second Amendment was actually the “fourth” amendment as proposed to the states. This refutes the assertion by many individual-right proponents that the Second Amendment is such because it is second in importance to the First Amendment (unless an individual-right proponent wants to argue that having a Congress that cannot give itself a pay raise is a more valuable “individual” right than that of possessing and carrying a weapon).
Finally, the Second Amendment is not the American analog to Section 7 of the English Bill of Rights, which states, “that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”. The American provision protects the right of the people to keep and bear arms, which is different than the English provision, which does indeed protect an individual right to possess weapons (albeit one that is limited to Protestants and one that limits the scope and purpose of the weapons).
Had Madison intended to include in the Constitution an American right to possess and carry weapons, he most likely would have included the New Hampshire proposal, which stated “Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” (Other proposals for a provision that would actually have protected the right of the individual to possess and carry weapons, which came from Pennsylvania and Massachusetts, never even made it out of their state ratifying conventions in the first place to make it to Madison’s desk.)