The Second Amendment, the Founders and Original Intent

 Constitutional_Convention_1787

By Sgt. Patrick Hayes

In a recent TTAG thread I watched as a debate ensued over the words “well regulated”and their meaning in the Second Amendment. I read an article recently from a deluded anti-gun liberal who pushed the idea that Madison, Jefferson and Washington were nothing but rich, white landowners who wanted a militia to put down revolts. He stated that all pro-gun folks were crazy to  think otherwise. The reason we think otherwise is because history tells us otherwise . . .

The Amendments were written to amend the Constitution because the state delegates demanded that it be done. That is why we call them the Bill of Rights. They are rights that the people demanded be written to ensure the Federal government could not abuse them.

As we all know, the Second Amendment states:

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.

Those of us who have spent decades fighting for gun rights have often cursed the “militia” clause. It was, before Heller, the favorite attack point of the liberal anti-gun crowd. They claimed it meant the National Guard and no individual had a right to own a firearm.

That is not what the framers said, that is not what they wrote and we have enough to say that is not even what they thought. They had just finished a war for independence. They feared large authoritarian governments. They were the revolutionaries. This was fresh in their minds when they wrote the Bill of Rights.

The entire Bill of Rights enshrined individual protections from government intrusion. They applied to the people. Why would the Second Amendment not do so as the anti-gun crowd claims?

Let a regular army, fully equal to the resources of the country, be formed, and let it be entirely at the devotion  of the federal Government; still it would be not going to far to say, that the State Governments, with the people on their side, would be able to repel the danger.The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twentyfifth part of the number able to bear arms.

This proportion would not yield , in the United States, an Army of more than twenty-five or thirty thousand men.

To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted that a militia thus circumstanced could ever be conquered by such a proportion of regular troops.”

James Madison, author of the 2nd Amendment, Federalist Papers, #46, 1788

Madison clearly states what a militia is and what its purpose is; to counter the federal government. The anti-gun folks pretend this and other documents don’t exist. They wish.

No free man shall ever be debarred the use of arms.

Thomas Jefferson, proposal to the Virginia Constitution.

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of troops, that can be, on any pretense, raised in the United States”

Noah Webster, 1787

Liberal propaganda aside, it’s very clear what the authors of the Second Amendment meant by “well regulated” They meant all those who could carry arms, organized when needed, to fight a corrupt federal government. So…who needs a select fire M-4 carbine? Every citizen who’s able to bear arms. That was the intent.

For the last century or so this meaning has been lost on our citizens. Most do not and never have considered the possibility of taking up arms against their own government. They watch governments around the world abuse and kill their citizens as they sit comfortably in their homes, secure in the belief that it will never happen here. Let’s hope not.

The founders never addressed hunting or self defense. These concepts were understood to be unalienable rights that no government could touch. They were above the Second Amendment’s intent. They were natural rights. If folks had the guns anyway, they could use them to protect their homes as well.

That the said Constitution shall never be construed to authorize congress to infringe the just liberty of the press or the rights of conscience; or prevent the PEOPLE of the United States, who are peaceable from keeping their OWN arms..

Samuel Adams

Next time an anti-gunner wants to lecture you on what the authors of the Second Amendment meant, explain what a militia is and cite my examples. It may scare the to death.

In closing:

The right of a citizen to keep and bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the state government. It is one of the “High Powers” delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it because it is above the law, and independent of lawmaking”

Cockrum v State, 24Tex394 (1859)

 

St. Hayes is a police officer in the southeastern United States. 

comments

  1. avatar Gordon Wagner says:

    >A law cannot be passed to infringe upon or impair it because it is above the law, and independent of lawmaking”

    How did they manage to outlaw 30-round magazines in my nanny State, then?

    1. avatar bdaniel230 says:

      Has it been tested in the Supreme Court? The liberals have a nasty habit of chipping away at our rights. The 30 round mag is a great example. By excluding a specific portion of the weapon but not the weapon entirely they make it impossible to mount a substantial resistance against Federal troops. However, I like Noah Webster’s take on it, as well as James Madison’s, by objectively looking at sheer numbers. If the 360 million citizens took it into their heads to go against the government probably about 5% of the people would be able and willing to mount the defense. But that number is an insurmountable number if properly officered. The number would be far in excess of the entire Federal force possibly mounted. 1% of 360 million is still 3.6 million. The entire standing Army of the US is less than 1 million.
      That is the primary reason we MUST keep the second amendment intact and whole.

    2. avatar neiowa says:

      Because “you” and your group (militia) have allowed it to be passed and to stand.

      While the “law” may be written on paper, accepted by you and your community (militia) it is still outside of the law, violates the Constitutional and is contrary to Natural Law.

      It is as lawless as a statute that would say ” no right handed blue eyed blonde may engage in political activities”.

    3. avatar RetLEO says:

      ‘They’ write laws as they see fit. If we had a system whereby ALL proposed laws were required (by the Constitution, of course) to cite where the Constitution granted the state the authority to write/enforce said law, it might be theoretically possible to avoid the problem created when nanny-laws are written. Instead, we have a system whereby a plaintiff must show injury as a result of the law in order to challenge it in court. So someone has to get arrested, then file suit and hope it gets to the Supreme Court. And have enough time/$$ to fight the .gov. Basically, the cards are stacked against the people.

      1. avatar Accur81 says:

        And we cannot trust the courts, even SCOTUS, to defend the Constitution. Examples: AWB, Obamacare, etc.

        1. avatar Gene says:

          Obamacare was presented, partly, as a “tax”. Also they assrted that it was a “decision process” they were regulating (iirc, in an email summary from Cuccinelli) which is not confined by state lines and therefore is, by definition, “interstate”.

        2. avatar LarryinTX says:

          Nah. Obamacare was very carefully NOT presented as a tax, the concept was actively refused by the administration and the AG. John Roberts, Chief Justice of SCOTUS, took it on himself to say it was a tax, and therefore constitutional. Proving the concept that we cannot even trust the SCOTUS to simply do its job.

        3. avatar MikeP says:

          While it is practically moot in 2014, Gene, where does the Constitution permit the Federal Government to regulate interstate decision processes?

        4. avatar Gene says:

          Regulating decisions was frames, iirc, under interstate commerce because the decisions potentially effexted parties across state lines.

          I’m trying to find the email Cuccinelli sent out almost daily to communicate what was happening when he was in Court. I’ll keep looking. It was so bizarre, I can remember reading it while waiting for a cab in Boston.

        5. avatar Gene says:

          “While this case raises a host of complex constitutional issues,” Hudson wrote in his opinion, “all seem to distill to the single question of whether nor not Congress has the power to regulate — and tax — a citizen’s decision to not participate in interstate commerce.”

          Read Latest Breaking News from Newsmax.com http://www.newsmax.com/InsideCover/healthcare–virginia–lawsuit–Cuccinelli/2010/08/03/id/366503/#ixzz3CTzB8LsK
          Urgent: Should Obamacare Be Repealed? Vote Here Now!

          Closest I can find right now.

    4. avatar Mel Albin says:

      To Sargent Hayes:
      It is commendable that you are attempting to mobilize history to support of your position, but what obscures your effort is your intent is to disparage “liberals.” a straw dog, your evidence is selective and because it is incomplete it is just so much more propaganda.

      For example, why did you overlook the phrase “a free state”. The Constitutional Convention was beset with sectional controversies and a consensus was in doubt. A primary issue was states’ rights and more than “appeasing the people” by including a bill of rights, they were aiming at the states. They used the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense–this is “the collective rights theory.”

      The Framers inended that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right. This is consistent with Article I Section 8 of the Constitution granted the federal government to regulate internal affairs, the power to regulate and govern military forces and militias, suppress insurrections and repel invasions. Specifically:

      · To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

      · To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

      · To provide and maintain a Navy;

      · To make Rules for the Government and Regulation of the land and naval Forces;

      · To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

      · To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

      Notice that this did not include a standing army only a navy because it was the state militias that were to defend the nation and to reduce the potential misuse at the federal level.

      This was further reinforced in 1939 where the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174, (which you conveniently overlooked).

      Look my point here is not about who is right, “gun nuts” vs “liberals” it is about intent and understanding the particular environment at the Constitutional Convention as a particular critical moment in the nation’s history. It was the States that had to ratify the Constitution and not the people! So if you are going to use history in the service of your own ideology, just say so.

  2. avatar Jeremy in AL says:

    Well said. With that in mind, why is there no real stomach from national organizations for repeal of the NFA?

    1. avatar Rainhaven says:

      Because it’s a money maker and those making the money do not want to lose their cash cow. The NRA and other orgs know that if the NFA comes down then the GCA is soon to follow and then all of the multi-thousand dollar machine gun collections owned by all the wealthy “investors” would be reduced to nothingness with the stroke of a pen.

      Do not be deceived.

      1. avatar LarryinTX says:

        I have $100 says the registered owners of more than 75% of the machine guns out there would say, no, SCREAM to repeal NFA, their machine guns are a miniscule portion of their wealth and they would like a few hundred more! I do not believe they would stand in the way of NFA repeal.

        1. avatar Ralph says:

          I know a bunch of guys who own machine guns. Every one of them would repeal the NFA in a heartbeat so they could buy more, which they can’t do now. Not because of cost — they have plenty of money — but because the supply is so low.

          And you’re right, a safe-full of machine guns is a trivial portion of their net worth.

        2. avatar Peaches says:

          To be honest, I have been thinking about talking to Alan Gura about using the 4th Amendment to go after the NFA.

    2. avatar neiowa says:

      Because it takes longer to build a structure than it does to burn it down (see also Obuma administration and the US).

    3. avatar FrankInFL says:

      It is a well-accepted principle of jurisprudence that later law supersedes earlier law. If the Interstate Commerce Clause ever gave Congress power to legislate regarding firearms, the Second Amendment revoked that power.

  3. avatar Mike Crognale says:

    Bravo Sir! Well written! If you do not object I would like to copy and post to my FB page with proper attribution of course.

    1. avatar Patrick Hayes says:

      Of course…TY

  4. avatar DaveG says:

    Newer than the federal bill of rights by only 102 years, and in the same unamended form as it was when drafted in 1889:

    “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.” Article 1, section 24 http://www.leg.wa.gov/LAWSANDAGENCYRULES/Pages/constitution.aspx

    I see that being complementary to the BoR, not contradictory.

    There are 43 more state constitutions that say something similar.

    1. avatar Gene says:

      Guess which states are the remaining ones.

  5. avatar Rob Aught says:

    Here’s the problem with “Well regulated”

    Back when the Bill of Rights was penned, I have no doubt what they meant was a body of armed citizens who were well disciplined and organized. The point of the militia clause was that the 2nd Amendment enshrines the right to protect oneself from tyranny. Tyranny does not have to come from government, it could be a local street gang. There are many forms of oppression that take place throughout the world and sometimes within our own borders.

    However, since everything is “regulated”, or essentially has a law written for it, the modern interpretation often views that “Well regulated” clause to mean we need a bunch of laws around it. It’s sad that the meaning of the word has changed so much.

    1. avatar Raul Ybarra says:

      Rob, you have to interpret the language according to the context and use of the author in the time it was written. In the late 18th Century, well regulated in the context used by the Second Amendment meant “well disciplined” in today’s usage.

      1. avatar Gene says:

        ‘zactly

      2. avatar Rob Aught says:

        ‘Dat’s what I said!

        Seriously, the whole thing is just too inconvenient for anti’s to wrap their head around.

      3. avatar TT says:

        Regulated had its modern meaning in 1790 too. Regulate is used throughout the constitution in the “modern” sense.

    2. avatar Geoff PR says:

      The name of the nut on the bottom of the pendulum of a grandfather-type clock is called the regulator – It regulates (adjusts) the speed of the clock movement.

      A well-regulated clock keeps accurate time.

  6. avatar Marcus Aurelius Payne says:

    In constitutional parlance “regulated” and “restricted” are essentially antonyms.

    The core of the 2nd is “the right of the people shall not be infringed.”

    1. avatar Misnomer says:

      And another place people fail is interpreting “infringed” as “denied” instead of it’s actual definition “limited.”

      This is how they can place “reasonable limitations” on the 2nd amendment right, even though it provides no room for limits of any kind.

      1. avatar MikeP says:

        Yes. To “infringe” literally means to create a fringe, or edge. In other words, to define a boundary. Put that in your pipe and smoke it, antis.

  7. avatar Michael Nieto says:

    The antis see the bill of rights as obsolete because they believe humans and society has evolved beyond the need for such documents they think a pure democracy and hobbsian leviathan won’t results in tyranny they believe in a fantasy and we live in reality in that way the left is actually insane

    1. avatar Marcus (Aurelius) Payne says:

      I’ve never understood their thinking. They believe that human beings are good enough to trust with such power and also corruptible enough to need forcing into preferred “moral” behavior.

  8. avatar A-Rod says:

    Do I have to have the select fire M4? Can I carry the M14 instead?

    1. avatar LarryinTX says:

      I can see it now. My M1A going up in price every year as a collector’s item; “Look! It’s semi auto only! I didn’t know they ever made ’em like that!”

    2. avatar Patrick Hayes says:

      Sure …if you prefer…..

    3. avatar dh34 says:

      Count me in on the 14 too. A few well placed shots of 7.62 can end a fire fight before it starts.

  9. avatar Ralph says:

    Why do we need a Constitution when we have Barack Obama?

    1. avatar jack in the Crack says:

      Uncanny…. That’s exactly what he was thinking.

    2. avatar Indiana Tom says:

      I can think of more than a few politicians who would fall into that category.

  10. avatar Rainhaven says:

    Madison was still a Federalist though so he and Hamilton knew what they were doing. They foresaw the Federal Behemoth and welcomed it. It was Jefferson and Patrick Henry and the Anti-Federalists that didn’t even want the Constitution in the first place, they were fine with the Articles of Confederation.

    The Constitution was drafted in secret to much protest and when it was finally passed around amongst the States they were aghast. The Bill of Rights was drafted AFTER the States got wind of what it was and what it laid out (hint: our demise). Also every single jot and tittle of the Constitution and the Bill of Rights had to go through the “Committee of Style” before it was officially released. No doubt many commas, clauses and other such nonsense was placed in at that time just to add to or down right create the confusion…

    1. avatar Glenn says:

      John Adams decided that the 1800 election, tied between Jefferson and Burr, should leave the defeated Federalists in possession of the office of the presidency until the next election.

      Fortunately for Jefferson, the Virginia militia was prepared to deal with this turn of events, while Adams forces were not assembled. Adams chose discretion over valor, departing before he would have been physically deposed.

      Sometimes just winning an election doesn’t mean taking office.

  11. avatar SleeStac says:

    In the process of checking the quotes, I came across an ironic one: “XVII. The people have a right to keep and bear arms for the common defence.” – Massachusetts State Constitution

    Great article Sgt. Hayes

    1. avatar AndrewinDC says:

      Good point.

      Many state constitutions state explicitly that owning firearms for self-defense is a protected individual right.

      Just a few examples:

      Virginia (the basis for the US bill of rights): That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed

      Ohio: That the people have a right to bear arms for the defence of themselves and the State

      Vermont: That the people have a right to bear arms for the defence of themselves and the State

      Penn: That the people have a right to bear arms for the defence of themselves and the state

      Wisconsin: The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose

      Connecticut: Every citizen has a right to bear arms in defense of himself and the state.

      Rhode Island: The right of the people to keep and bear arms shall not be infringed

      1. avatar LarryinTX says:

        It would appear Vermont was the only state which actually meant it.

      2. avatar TT says:

        Note the explicit distinctions drawn here between defense of self and defense of state. Compare what the second amendment says about who is being defended or secured. Be careful with the 2A. It’s kind of squirrelly.

    2. avatar Patrick Hayes says:

      I have found many like that. Seems like folks back then cared about their rights…..

    3. avatar publius2 says:

      +1. Thank you Sgt Hayes. I have learned so much here from staff and guest authors at TTAG, and why the respectful, diverse opinion and debate on THE FACTS is so enlightening, vs other places on the innertubz,
      and why the “clean, well-lit room” (Hemingway) is so important, here.

      IANAL, so I find myself struggling to understand some of the legal concepts, and have to dig much deeper-

      Here is a simple cheat sheet, that I will defer to the lawyers, to say if its helpful-
      http://www.guncite.com/gc2ndpur.html

      And something more comprehensive, if one were to approach it from a college course perspective:
      http://www2.law.ucla.edu/volokh/2amteach.htm

      The deep legal scholarship on 2A rights over the last few years has been cited as part of the success in Heller and McDonald, and 2a cases since.

      Here is Professor Volokh, UCLA, in 1998, that speaks to “how to” debate a gun-grabber who cherry picks a phrase to support his/her position:

      “My modest discovery is that the Second Amendment belongs to a large family of similarly structured constitutional provisions: They command a certain thing while at the same time explaining their reasons. Because some of the provisions appeal to liberals and some to conservatives, they offer a natural test suite for any proposed interpretation of the Second Amendment. If the interpretive method makes sense with all the provisions, that’s a point in its favor. But if it reaches the result that some may favor for the Second Amendment only by reaching patently unsound results for the other provisions, we should suspect that the method is flawed. ”

      http://www2.law.ucla.edu/volokh/common.htm

      And something more recent, from Professor Glenn Reynolds, in 2007, here:

      ” It brings home the point that the Framers were neither liberal nor conservative in modern terms, but rather a peculiar sort of traditionalist quasi-libertarian that has no real modern analog. And — as is all too often forgotten — they were a bunch of revolutionaries, not a collection of conventional-wisdom-spouting graybeards. ”

      http://www.freerepublic.com/focus/news/1885539/posts

  12. avatar Robert Seddon says:

    Just outlaw the IRS. They have broken FAR more laws than most gun owners have.

    1. avatar Glenn says:

      The Sixteenth Amendment legalizing the income tax should be repealed.

      The bloated Federal budget is the direct result of direct taxation of the individual citizen by an unaccountable Federal government. This amounts to taxation without representation.

      Each state has two Senators out of the one hundred who pass all laws. This means that a citizen has no vote with which to regulate Senate members because 98% of this legislative body is unaccountable through elections to the citizens of each individual state. The House of Representatives poses the same problem, but less extremely because it is proportional to population.

      Without the Sixteenth Amendment, taxes raised from each state would have to be raised by individual state legislatures that are directly accountable to the voters of each individual state. Individual state legislatures would have to reduce Federal largess or explain to their electorate why they didn’t.

      If the states cannot resist the Federal government’s Autonomous Military Power, as the late John Kenneth Galbraith referred to it, and as Federalist #46 envisioned, then the Constitution will not operate as advertised.

      1. avatar Chip Bennett says:

        Indeed. Direct federal taxation of individuals, combined with direct election of US Senators, has all but eliminated the concept of the US as a Constitutional Republic of Sovereign States. We are slowly being reduced to a democracy, to our own demise.

  13. Excellent write up.
    Bookmarked!

  14. avatar Chip Bennett says:

    Excellent resource; thank you!

  15. avatar Paco says:

    The Federalist Papers also touches on intent of the 2A, indicating the population should be at least as equally armed as the Central or Federal Government.

  16. avatar JasonM says:

    I read an article recently from a deluded anti-gun liberal who pushed the idea that Madison, Jefferson and Washington were nothing but rich, white landowners

    Those rich, white people make me sick! That’s why I align myself with people like Bloomberg, DiFi, Hillary, Shannon (it’s purely platonic Dirk), Bill Gates, Steve Ballmer, and anyone named Kennedy. They truly understand the plight of the poor and minorities. Not like those rich, white gun rights activists.

    1. avatar Ing says:

      They absolutely were rich, white landowners. They were the 1% of their time.

      But to counter that ad hominem, let’s indulge in a little comparison. What have the one-percenters of leftist ideology done? They’ve given us the USSR (Lenin/Stalin), China (Mao), Cambodia (Pol Pot), North Korea (the Kim Jongs), Venezuela (Chavez/Maduro)….

  17. avatar Garrison Hall says:

    ” . . .To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. . .”

    The Bundy Ranch, for example.

    1. avatar Patrick Hayes says:

      +1

  18. avatar Mike D says:

    “The founders never addressed hunting or self defense.” This was actually addressed in the Pennsylvania Constitution of 1776 one of the two primary documents the 2nd Amendment was drawn from (the other being the Virginia Declaration of Rights) “That the people have a right to bear arms for the defense of themselves and the state” (Pennsylvania Constitution of 1776, Declaration of Rights, Article 13).

  19. avatar ILSL says:

    You can easily counter that bullshit reasoning by pointing to the language found in many state constitutions. Here in Illinois the term “militia” is explicitly defined as “all able-bodied persons
    residing in the State except those exempted by law.”

    http://www.ilga.gov/commission/lrb/con12.htm

    That makes it pretty clear that the 2nd Amendment is referring to individuals.

  20. avatar tdiinva says:

    And note that the meaning regulated means drilled, or in modern English trained, not the authority of the government to right gun control regulations. The term regular to refer to member of the standing army meant that these regulars were trained soldiers.

  21. avatar Joe R. says:

    “Thereby, if any party’s claim is such that: “I cannot defend you until you have surrendered the means by which you can defend yourself;” only the first half of the statement is true.” [TERMS, J.M.Thomas R., 2012, Pg. 46]

    “the possession and implementation of the use of arms by individuals in U.S. Societies, is the lone insurance in defending every other “right.”[TERMS, J.M.Thomas R., 2012, Pg. 46]

    “The more corrupt the state, the more it legislates” – Tacitus.
    “Government is not reason; it is not eloquence; it is force. Like fire, it is a dangerous
    servant and a fearful master.” – George Washington. http://quotes4all.net/

    “Common sense will tell us that the power which hath endeavored to subdue us, is of all
    others the most improper to defend us. Conquest may be effected under the pretence of
    friendship; and ourselves, after a long and brave resistance, be at last cheated into
    slavery…. Wherefore, if we must here-after protect ourselves, why not do it for ourselves?
    Why do it for another?” ( Paine Common Sense pg. 47)

    1. avatar Joe R. says:

      The founding fathers were not clairvoyant, nor did they have a periscope to view above the immediate rabble.

      The 2nd Amendment is there to enshrine (not bestow) the right of each individual to have a say (as the founding fathers did) in what comes next should this all fail.

      “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare [NOT ASK – emphasis mine] the causes which impel them to the separation.”
      — OPENING Paragraph to the Declaration of Independence

      That’s an ongoing assessment and obligation.

      That also means, should you so-decide, I cannot require you to ask my permission, should you decide to declare Civil or Revolutionary War. Trust me, should I decide, I’m not askin’.

      The argument over gun control is over, you just decide when the conversation is too.

  22. avatar TT says:

    Be careful when talking about the founders and what the second amendment meant to them. It’s too easy to fall into the trap of looking at the second amendment through modern glasses.

    The second amendment and gun ownership wasn’t that big of deal compared to other issues at the time of ratification of the Constitution and the Bill of Rights. The founders were mostly concerned with drafting a constitution that could get ratified. The main reason the Bill of Rights wasn’t originally included in the Constitution was the founders didn’t want to jeopardize ratification. They kicked the can down the road instead.

    The biggest constitutional issue at the founding of the country was the balance of federal and state power. Next was slavery. National banks, term limits, proportionality of representation in congress, and many other issues dwarfed private gun ownership. Compared to other issues, the founders wrote and discussed gun ownership very little. The issue is nearly absent from the minutes of the constitutional convention and the states’ ratifying conventions.

    At the founding, individual gun ownership, militias, and standing armies were all tied in together. Some founders thought the federal government shouldn’t be allowed to have a standing army. Others thought a standing army was OK. For the most, part private gun ownership was used as an argument to support the idea that a (small) standing army was OK. You don’t really see gun ownership discussed outside of the context of acting as a check against a federal standing army.

    The end result was a constitution that did not prohibit a federal army and, as a balance, contained a prohibition against federal infringement of the right to keep and bear arms. If you read the second amendment in this context its language makes perfect sense. If you read it through a modern lens, where we have a huge and popular standing army and few militias, the language gets murky.

    It also helps to remember that when it was adopted, the second amendment did not limit in any way the states’ ability to regulate militias or gun ownership. (I know this makes some peoples’ heads spin, but it’s still true.) As adopted the second amendment served a very narrow purpose: Helping to make sure the federal government didn’t get too powerful. The states were left to sort out on their own the thornier issues that can arise with private gun ownership. (Plenty of founders were quite authoritarian, by the way. Many would not sympathize with today’s libertarians.)

    Because state and local governments pose the biggest modern threats to gun rights, in a way, it doesn’t make sense to discuss what they founders thought the second amendment meant since they didn’t think it limited the power of state and local government.

    The limited federal power ship sailed when the Civil War ended. The Supreme Court has been kind of enough to rule in the last few years that the right to keep and bear arms is an individual, fundamental right. We’ll see how far that ruling gets us.

    The upshot of all this is when it comes to gun rights, please don’t live in the past. What the founders thought the second amendment meant has little to nothing to do with our current situation. Be concerned with what the second amendment means now. It protects an individual right to an unknown extent. It will only do that much as long as certain judges on the Supreme Court stay there and certain people don’t get elected president. Speculating about what dead men thought won’t help anything.

    1. avatar Joe R. says:

      “The main reason the Bill of Rights wasn’t originally included in the Constitution was the founders didn’t want to jeopardize ratification. They kicked the can down the road instead.”

      Incorrect, the main reason it was ‘absent’ but not ‘omitted’ is because it was understood that these things were “understood” and a compilation of approximates will never equal the full and actual ‘thing’ (i.e., you can never reach a deductive answer through an inductive argument because you will always be able to leave something out). It was included so that the states would ratify it, they were not about to let anyone milk them through the fence, and the bill of rights was the capping authority.

      Plus, it attempted to address the issue of slavery, which, the 3/5ths compromise, was intended to prevent Southern Slave owners for casting their slaves vote by proxy in order that they might vote to maintain slavery.

      1. avatar TT says:

        I can’t tell if you think the Bill of Rights was part of the original constitution or not. It wasn’t.

        The constitutional convention finished it’s work in September 1787. The last state to ratify the Constitution did so in 1790.

        Congress approved the Bill of Rights in September 1789 and sent it out to the states for ratification. The original Bill of Rights included twelve amendments to the Constitution. The first has never passed. The second passed in 1992. Amendments 3-12, which became the Bill of Rights, were fully ratified in December 1791.

        Some founders wanted a list of enumerated rights from the get go. Others didn’t. Leaving a list out prevailed to keep things moving at the constitutional convention, i.e. kick the can down the road. The lack of a list of enumerated rights wound up stalling ratification in some states. Thus, Congress approved the list in 1789.

        The 3/5ths compromise is found in Article 1, Section 2, Paragraph 3 of the Constitution itself. The Bill of Rights does not address slavery.

        1. avatar Rowan Murphy says:

          The 3/5 rule was actually enacted by those opposing slavery, and this was done because the Democrat slave owners were counting every slave they owned as votes for Democrat candidates. They counted them as persons in order to count their votes, but they would not actually let them vote of their own volition. The rationale of the abolitionists was that if the Democrats were intent on denying black people the actual rights of personhood, then they shouldn’t get to arbitrarily declare them persons in this context only, but denying them personhood in every other context, in order to win elections.

          Had the Republicans not enacted the 3/5 rule, the pro-slavery Democrats would have expanded their power, and they would have kept slavery alive for longer. But the 3/5 rule was for slaves, not for blacks universally, but for slaves. It was a compromise sought in order to stop the pro-slavery Democrats from winning elections. It worked, and it brought about abolition quicker.

          Ignorance of this history allows the Democrats to keep winning elections, largely because of the black vote, and this keeps them in power in the very cities where blacks are kept poor. The Democrats have been in power for decades, uninterrupted, in the top ten cities for poverty rates, and the top twenty cities for murder per capita. I can give far more facts than these. But that should suffice. There is no answer to these facts.

    2. avatar Patrick Hayes says:

      Well thought out.

      This piece was specifically about the original amendment and what it meant when it was written. It is a counter to those who use it to try to limit individual ownership.. The left claimed for years that there was no right or INTENT from the writers that citizens be guaranteed the right to bear arms.

    3. avatar Ing says:

      “Speculating about what dead men thought won’t help anything.” That’s why it’s so helpful to look at what they wrote.

      You’re right that original intent can’t be our only argument; still, it’s a necessary part of the evidence that supports our case. Like Patrick said, it helps prove that the Constitution really does intend the Second Amendment to protect an individual right.

      It’s essential context that the leftists and progressives are trying their best to sweep under the rug, because it doesn’t support their aims. We need to make sure they can’t make it disappear from the debate.

  23. avatar explainist says:

    massive web page to be released in the very near future regarding this very topic. shooting for a release Monday

    bottom line:

    the founding fathers want you to have an AR15 and a 9MM. proven in their own words
    the founding fathers knew quite well that people are to busy to train as an organized militia. proven in their own words
    the founding fathers want you to have your weapons in your possession. proven in their own words

    myths about the “assault rifle” are slashed and gutted
    “Liberal Hypocrisy” is one big bitch slap
    the history of past attempts at prohibition is examined

    these pages are written and ready to go

    the site must be navigated front to back, intro, lesson 1, lesson 2, each lesson containing information critical to understanding the next lesson. therefore I need to get all of them ready before I publish any of them

    What I should be doing right this minute is writing the final page predicting the inevitable result of gun prohibition, based on the examination of the history of all past attempts

    So I’ll get to work on that.

    1. avatar TT says:

      Some founding fathers disagreed with other founder fathers on almost everything. If the founders could see the world today, some would think you should be able to own nukes. Others would think you shouldn’t be allowed to own anything at all, including guns, unless you’re a white man who also owns a substantial amount of real estate. That’s the trap of speculating about what the founding fathers thought. The founders were lots of individuals with differing ideas and interests.

      Rather than being concerned with what kind of weapon was at issue, the first question most of the founders would likely ask is “is it a state or local law or a federal law?” Most of the founders would first be concerned about the source of the power rather than the end result of its exercise. If you didn’t like a state or local law, most of the founders would probably tell you to get your friends together and elect new leaders and quit worrying about what the federal Constitution said.

      To be fair, I think most of the founders would also agree that all restrictive federal firearms legislation violates the second amendment. The problem is that when most people today talk about what they think the founders thought, they don’t draw the critical distinction between federal and state or local authority.

    2. avatar Gene says:

      Pointing out the Puckle Gun is always a good way of countering “The Founding Fathers could never have imagined…”.

  24. avatar GenghisQuan says:

    >>”Founders wanted a militia to put down revolts”
    >>implying militia wouldn’t be the ones revolting in the first place
    Jeez, it’s like that leftist didn’t know what the Whiskey Rebellion was.

  25. avatar Raul Ybarra says:

    Nicely written, Sgt. Hayes. Thanks!

    Two items to add to your excellent essay, though.

    1. Don’t forget that while the Amendment begins with a reference to the “State,” the right addressed is that of “the people.” In every other reference of the Bill of Rights, references of the people are references to individual rights. The is no basis to presume – other than a bias against arms – that the Second Amendment refers to anything other than a right of the individual.

    2. Another subject that I’ve started looking at since the Ferguson trouble has been the doctrine of the posse comitatus. It appears that this idea was solidly entrenched in the Founders minds as well. It was a Natural Law principle that they considered – as you say – above the Second Amendment’s intent. In fact, the militia appears to have been considered a subset of the posse comitatus, if I’m understanding it correctly. (hopefully someone knows a bit more than I do on this one)

    3. It appears that a growing number of anti-gun activists are beginning to realize all this. This is evidenced by an increase in calls for a repeal or revision of the Second Amendment. While I don’t believe that would happen in our lifetime, if you pay attention to how guns are treated in the education system, I think it could easily happen in our grandchildren’s day if good people ignore the danger this day. Progressive play a long game; of generations if needed.

    Thanks again. For both your words and your service.

    1. avatar Patrick Hayes says:

      Thank you.
      It is vital to realize that the amendments in the bill of rights are one set dependent on each other for existence. The 1st amendment that the left wing media loves so much only exists protected by the 2nd amendment.

  26. avatar Jus Bill says:

    Correct, Sgt. Hayes. Correct.

    1. avatar Patrick Hayes says:

      Thank you sir!

  27. avatar BZA says:

    A Bill of Rights was promised to the states by the Constitutional Convention in order to convince the states to ratify the new Constitution and form a federal government that had just enough power to hold the 13 states together because nothing was getting done under the Articles of Confederation. The the right to keep and bear arms was included in the Bill of Rights but at the time this right was “understood”. The rights to self defense and hunting were not really considered rights that were granted to the people. In the late 1700’s and early 1800’s if you didn’t hunt you didn’t eat. Hunting was a part of every day life for these people. Self defense was a given during this time because there really was no police to speak of, if you had a problem you took care of it by any means necessary.

    It is absolutely appalling the attack on what is America that has been taking place for the last 6 years. We are under an administration that is hell bent on destroying everything that makes America great. It is ridiculous that we are having to fight for rights that were guaranteed to us when this great country was founded and that have reaffirmed by Supreme Court.

    “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of troops, that can be, on any pretense, raised in the United States”

    Noah Webster, 1787

    This quote could not be more true.

    Japanese Admiral Yamomoto (the man who orchestrated the attack on Pearl Harbor) once said that “You cannot invade the mainland United States. There would be a rifle behind every blade of grass”

    1. avatar Patrick Hayes says:

      +1

    2. avatar WI Patriot says:

      The quote has proven to be false, it was only said in the movie “Tora, Tora, Tora”…

      1. avatar BZA says:

        Regardless of whether or not he said it, the principle itself stands true.

  28. avatar WI Patriot says:

    Very well written, I’m supremely impressed…

  29. avatar mirgc says:

    It’s all hooey! Here’s the real history of the 2nd amendment. Read it. IF YOU DARE!!!!

    https://www.facebook.com/momsagainsteverything/posts/1490457727857120

    Note: keep tongue in cheek… 😉

  30. avatar SIES says:

    Excellent work Sgt. Patrick Hayes.
    “Proud To Stand With Ye”

    The U.S. Bill of Rights
    The Preamble to The Bill of Rights
    Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.

    [Excerpt as follows:]
    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
    RESOLVED…”

    Note: Specific ‘further declaratory and restrictive clause added in order to prevent misconstruction or abuse of its powers as follows:

    Amendment II
    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.

    http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

  31. avatar John L. says:

    Bookmarked. Thank you.

    1. avatar SIES says:

      My privilege to have done so.
      ‘A curiosity indeed that the Founders of the Great American Constitutional Republic saw fit to provide a passage in brief explanation of their purpose and intent for declaring specific ‘Rights’ already held by all American Freemen — but so few today are seemingly aware of this, and fewer still ever actually cite it.’
      ( In addition to other ‘men of great esteem’ — George Mason himself refused to sign the Constitution without declarations of specific ‘Rights’ as further restrictions on those few and Constitutionally-limited ‘powers’ afforded to those within the Federal government )

  32. avatar Indiana Tom says:

    They are rights that the people demanded be written to ensure the Federal government could not abuse them.

    As we all know, the Federal ( Feral?) Government most certainly did!

  33. avatar Indiana Tom says:

    Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. And pretty much still are.

    1. avatar RobGR says:

      Which is basically what the Militia Acts did, they eliminated State sovereignty and placed the militias under the control of the centralized government, indirectly creating a standing army. Originally sold as a way to organize and utilize state militias against foreign or Indian forces, the militias (from neighboring states with no local ties or allegiance) were then used to suppress the various rebellions generated by Americans who would be damned if they were going to be taxed to death under the new government, that was supposed to represent them, like they were under the British. Quite brilliant really, grant a Right, but then **** it sideways by passing multiple laws afterwards that basically mitigates it’s full meaning. Keep passing laws over the centuries and it is now devoid of any meaning.

      Who cares if the people are armed when they are completely controlled and, obviously, now we have a standing army that will decimate any and all US citizens that look to take their country back, whether by force or by ballot. We mean nothing and the ideals that this great country was founded on have been nullified.

  34. avatar Kyle says:

    Michael Waldman, liberal law professor, argues that it is to protect a right of state militias. I am currently working my way through his book, “The Second Amendment: A Biography” and writing notes as I read to write a review of it on Amazon here I will point out many of the wrong arguments in it. I have to say that some of his arguments are just outright nonsense. For example, he infers (literally) that when the Constitution speaks of the “militia,” that this is in reference to the state militias. He even will cite writings from the time talking about the militia, but then claim it is in reference to the state militias.

    He also makes the claim that the phrase “the people” in the Second Amendment means “the body politic,” and argues that the phrase “the people” when used elsewhere in the Constitution can also be construed to have a collectivist meaning (such as in the 4th Amendment for example), which is news to me. He claims that the word “state” refers to the individual states, and that when the Constitution uses the word “state” it is always in reference to the individual states, and not say a republic. But when the Constitution refers to the rights of states, it specifically says “the states,” not “the people.”

    And so forth. He also mocks and demeans respected scholars who argue that it is an individual right, which IMO is rather unprofessional for what is supposed to be a serious work of scholarship.

    1. avatar Kyle says:

      But when the Constitution refers to the rights of states, it specifically says “the states,” not “the people.”

      I meant, “it specifically says “the states,” not “state.” It DOES use the word “state” here and there in reference to individual states, but when talking of the rights of states, my understanding is that it refers to “states” not “state.”

    2. avatar Kyle says:

      In addition, even if one interprets the prefatory clause to be the primary part of the amendment and the word “State” in the amendment to be in reference to the individual states, that STILL doesn’t undermine the individual right interpretation of the Second Amendment, as it says “the right of the people.” The only way the collective right argument would hold is if “the people” was interpreted to be a collective right, which is a titanic stretch legally.

      All such a modification in understanding would mean is that the Second Amendment, in more plain language, would mean the following:

      “Each state having its own quality militia is extremely important to its security, therefore the individual right of citizens to keep and bear arms shall not be infringed by the federal government.”

      One could say, “Well the states themselves could make their own gun control laws,” sure, but at the time, that is how it was even with the individual right interpretation gun rights people adhere to. That is also how it was with regards to the First Amendment, Fourth Amendment, and so forth. This was all changed via incorporation.

  35. avatar Michael Reed says:

    I would like to clear up some slight confusion over facts. After the Federal Convention in Philadelphia, the proposed Constitution was sent to the states for ratification. After each ratification vote, each state sent in a report on its proceedings to the old Continental Congress. Five states ratified quickly, but stiff opposition arose and lots of political propaganda was published.

    When the Federalists realized they would likely lose in Massachusetts, they managed to postpone that ratifying convention for a few months, in order to whip up some propaganda (the Federalist Papers) and work some back room deals. A secret agreement known as the “Massachusetts Compromise” was made whereby a Bill of Rights was promised to be added after final ratification of the Constitution. Massachusetts then narrowly ratified.

    This gentlemen’s agreement eased remaining opposition in other states and the Constitution eventually passed. however, from the Massachusetts Compromise on, state convention reports included proposed amendments to the new constitution. To their credit, the Federalists (led by Madison) kept their word and took up a Bill of Rights early in the first Federal Congress. Had they reneged, who knows where we would be today.

    The 2A was largely a response to the clause in the Constitution which gave the Feds power to arm and train state militias. The fear was they would let militias wither on the vine and then a standing federal army could push the states around. It was thought that as long as the people could keep and bear their own arms, the Feds neglecting the militias would not be as much of a problem.

  36. avatar Michael says:

    Excellent write up! I will be sharing this with many people that do not read TTAG.

  37. avatar BHirsh says:

    Grammatically, the term “well-regulated” modifies the noun “militia”, not the noun “right”. They aren’t even in the same clause. It is the militia, when acting as a militia, that is to be “well-regulated”.

    It is not even necessary in the collective v. individual ‘debate’ to determine the context of the term, although there is evidence aplenty to indicate that “well-regulated” meant “well-trained and disciplined” in the contemporary discussions of militias.

    Since it is individual people who might be called to comprise a militia who have the right and not the militia itself (it says “the right of the people“), the collective-right argument is facially ridiculous.

  38. avatar Mike Vraa says:

    Fascinating reading. How do we allow any gun limits, based on this reasoning. If I am to be able to defend myself and my family from government tyranny, why can’t I have a nuclear weapon (or chemical weapons for that matter…)? How can the airlines stop me from taking my conceal/carry permitted gun onto a plane? Why is my right to bear arms limitable at all?

  39. avatar Tony Santurio says:

    What I don’t see in all these comments is the acknowledgement of the security of the individual. With all the crime that is so prevalent in many cities in America today. And all the refugees that are being brought illegally into this country, a danger exists. This danger is being produced by liberal lawyers and judges looking to enrich themselves by promoting civil suites. “The civil rights” of the legally licensee that carries a gun is being infringed upon. The average response for the police to reach one in danger is 6 minutes,+- 5 minutes, depending when the assault begins and the 911 call is made. An attack can take but 2 to 3 seconds. My concern is that the innocent victims that protect themselves are being arrested and prosecuted as criminals. Civil suites are charged by unscrupulous lawyers looking to bottom feed from the victims plight. I believe that the liberal left has found a way to control the usage of guns. By creating fear in the minds of gun owners when using their weapons for self defense. Insurance companies are now selling policies to protect the legal gun owner from being sued by the family of the one that committed the crime. There is another danger that may be developing, and that is apathy. If you know you can run the risk of being sued by any one, you just may not respond to some one in need. Except maybe when defending your family. This is dangerous and non productive in stemming the tide of terrorism in this country, and by terrorism I mean, any one who causes harm to another human being regardless of your religion or ethnic background. There is one thing that is not looked at when explaining the 2nd Amendment. ” No one can guarantee your safety at the point of attack ” We all live in fear of being arrested and loosing everything that we have worked so hard for all our lives, because of the liberal bias against the freedom that the 2nd Amendment guarantees every law abiding American.

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