I spent much of the last week assisting my brilliant colleagues in preparing their supplemental brief in Duncan v. Bonta. This is the magazine-capacity case that kicked off the now-famous “freedom week” in California in 2019. Our win in district court was affirmed on appeal by a 3-judge panel, but then was reversed by the Ninth Circuit sitting en banc.
Thankfully, the Supreme Court acted on our appeal by vacating the en banc decision and remanding the case for further proceedings in light of Bruen.
Back in the district court, the Attorney General Rob Bonta submitted an overlong brief making all sorts of inane arguments, which our brief responds to quite well. However, one throwaway line from the Attorney General bugged me immensely . . .
In neither Heller nor Bruen did the Court find that the Second Amendment’s protections were grounded in the need to bear arms for militia service…or as a “check against tyranny”. In fact, Bruen repeatedly confirms that self-defense (and not militia or military service) is the “central component” of the right protected by the Second Amendment.
Personal self-defense is certainly a critical aspect of the Second Amendment, but both the founders as well as the generations immediately after them considered one other purpose paramount: a final defense against a tyrannical government that attempts to overthrow our constitutional order.
This idea, once accepted as common knowledge, has become controversial. It has been derided by modern day gun control advocates as the “insurrectionist theory” of the Second Amendment that was invented by the NRA in the 1970s.[1]
Yet it certainly wasn’t invented by the NRA, nor is it some tinfoil hat theory. It instead goes to the very core of what the Second Amendment was intended for, as the historical record is indisputable on this point.
Embarrassing as it may be to admit for some polite society academics of today, the Bill of Rights was written by people who just finished violently overthrowing their former government. Based on that experience, they were obviously very fearful of the new government they were forming becoming tyrannical, and so they included the Second Amendment, in part, as a failsafe.
You don’t need to take my word for it – the Founders said so themselves. James Madison tried to assuage fears of a tyrannical federal army running roughshod over the people in one of his many Federalist Papers:
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…To these would be opposed a militia amounting to near half a million of 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, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of…[2]
Likewise, Alexander Hamilton added that, should a large army ever be raised, “that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”[3]
Tench Coxe, a friend of Madison and himself a delegate to the Constitutional Convention, wrote that “Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”[4]
Given this guiding purpose of the Second Amendment, it follows that excluding from the right so-called “weapons of war” makes no historical sense, particularly in a country where there is a long tradition of widespread lawful ownership of such weapons.[5] What’s more, this view of the Second Amendment as a guard against tyranny remained the prevailing one throughout the 19th century, as a plethora of writers from the era confirm.
In particular, note how matter-of-factly these excerpts are phrased. These writers plainly did not believe they were saying anything controversial in the least, and a number of these books were textbooks meant for students, not screeds by fringe radicals.
- “[The Second Amendment] may be considered the true palladium of liberty…Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to The Constitution And Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, at 300 (1803);
- “Some tyrannical governments resort to disarming the people, and making it an offence to keep arms, or participate in military parades. In all countries where despots rule with standing armies, the people are not allowed to keep guns and other warlike weapons.” Joseph Bartlett Burleigh, The American Manual: Containing an Outline of the Origin and Progress of Political Power, and the Laws of Nations, at 212 (1848) (emphasis added);
- “If citizens are allowed to keep and bear arms, it will be likely to operate as a check upon their rulers, and restrain them from acts of tyranny and usurpation.” Furman Shepherd, The Constitutional Text-book: A Practical and Familiar Exposition of the Constitution of the United States, and of Portions of the Public and Administrative Law of the Federal Government, at 245 (1855);
- “With arms in their hands, the people will not be likely to permit the overthrow of their institutions by the unscrupulous ambition of a civil magistrate or military chieftain.” Henry Flanders, An Exposition of the Constitution of the United States – Designed as a Manual of Instruction, at 258 (1860)
- “It is scarcely necessary to say, that the right of the people thus to bear arms is the foundation of their liberties; for, without it, they would be without any power of resistance against the existing government.” Edward D. Mansfield, The Political Manual; Being a Complete View of the Theory and Practice of the General and State Governments of the United States, at 205 (1861);
- “But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.” John Norton Pomeroy, LL.D., An Introduction to the Constitutional Law of the United States – Especially Designed for Students, General and Professional, at 152 (1868) (emphasis added);
- “Right to Keep Arms – This means the right of every one to own and use, in a peaceful manner, warlike weapons. Congress is forbidden to pass any law infringing the right. It was thought that without it, ambitious men might, by the aid of the regular army, overthrow the liberties of the people and usurp the powers of government.” Andrew White Young, The Government Class Book; A Youth’s Manual of Instruction in the Principles of Constitutional Government and Law, at 185 (Effingham Maynard & Co. 1889) (1880) (emphasis added);
- “The right to bear arms is not herein granted, but only protected from infringement…This clause is based upon the idea that the people cannot be oppressed or enslaved who are not first disarmed.” Robert Desty, The Constitution of the United States, at 255 (2d ed. 1884);
- “The right declared was meant to be a strong moral check against the usurpation and arbitrary powers of rulers, and as necessary and efficient means of regaining rights when temporarily overturned by usurpation.” Thomas M. Cooley, LL.C., The General Principles of Constitutional Law in the United States of America, at 298 (1898).
More examples can certainly be found. What’s perhaps most fascinating is that the commentators who embraced some gun control laws in the 19th and early 20th centuries were still clear that “weapons of war” were protected by the Second Amendment. Perhaps the government could stop you from carrying a small pistol concealed (though open carry was generally allowed), but it couldn’t block your possession of the most effective weapons of the day.
A few examples . . .
- “[T]he provision protects only the right to ‘keep’ such ‘arms’ as are used for purposes of war, in distinction from those which are employed in quarrels and brawls and fights between maddened individuals.” Joel Prentiss Bishop, Commentaries on the Criminal Law Volume 2, at 74-75 (4th ed. 1868) (emphasis added);
- “This clause does not mean that only organized state militia may keep and bear arms, but it means that every citizen may do so[…] However, it does not mean that men are allowed to carry concealed weapons.” Laura Donnan, Our Government Brief Talks to the American Youth on Our Governments, General and Local, at 238 (1900).
- “The ‘arms’ here meant are those of a soldier. They do not include dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots. The citizen has at all times the right to keep arms of modern warfare…” Henry Campbell Black, M.A., Handbook of American Constitutional Law, at 543 (3d ed. 1910).
If even the famous original author of Black’s Law Dictionary believed that “arms of modern warfare” are protected, then clearly modern-day semiautomatic firearms fall under the Second Amendment’s scope.
Older court decisions also support this point. To reinforce its ruling that only weapons suitable for a citizen militia are protected by the Second Amendment, the Miller Court in 1939 cited Aymette v. State, an 1840 case from the Supreme Court of Tennessee, which explained that citizens “may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution…So the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.”[6]
The Supreme Court of Arkansas discussed this topic in 1876 as well: “It is manifest from the language of the article, and from the expressions of these learned commentators, that the arms which it guarantees American citizens the right to keep and to bear, are such as are needful to, and ordinarily used by a well regulated militia, and such as are necessary and suitable to a free people, to enable them to resist oppression, prevent usurpation, repel invasion, etc., etc.”[7]
Unfortunately, only a small handful of federal judges today will acknowledge this history. One was Judge Alex Kozinski, who retired in 2017. Dissenting from a decision to uphold an appellate panel ruling that the Second Amendment did not protect an individual right to bear arms, Judge Kozinski explained . . .
The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.[8]
It’s hard to put it better than that, so I won’t try. But regardless of what any modern judge says, Americans of the 18th and 19th centuries spoke for themselves. Whatever other arguments that may exist against modern semiautomatic firearms, they would be seen by the first generations of our Republic as the very weapons the Second Amendment protects most of all.
We are fortunate enough to live in a time where the idea that we may need to take up arms against a tyrannical government seems farfetched. I certainly hope that such a dark day never comes.
But even if it doesn’t in our lifetimes, we have been entrusted to protect this inheritance of liberty not just for ourselves, but for all generations to come. Americans of future generations, facing circumstances we can’t fathom, may indeed be very glad we did.
[1] See, e.g., Olivia Lee, The Gun Rights Rhetoric That Helped Seed the Insurrectionist Mindset, The Trace, (January 9, 2021), (as of November 11, 2022) (“There’s a theory of the Second Amendment called the insurrectionist theory. According to it, the Second Amendment preserves civilians’ right to bear arms so that they can take up arms against a tyrannical government, should the need arise…. Now, there are other historians who would say that that’s a tendentious reading of the history, at best, and that really nothing about the idea of the Second Amendment is actually designed to empower the people to overthrow the government. The insurrectionist theory wasn’t part of modern legal discourse until the 1970s, at the earliest. That was when the National Rifle Association went from being a sportsman’s organization to a very strong and inflexible gun-rights organization.”).
[2] The Federalist No. 46 (James Madison).
[3] The Federalist No. 29 (Alexander Hamilton).
[4] Remarks on the First Part of the Amendments to the Federal Constitution, under the pseudonym “A Pennsylvanian” in the Philadelphia Federal Gazette, June 18, 1789, p. 2 col. 1 (As quoted in the Federal Gazette, June 18, 1789.).
[5] The US government itself played a part in the distribution of them. For example, through the Civilian Marksmanship Program, and just between 1958 and 1967, the federal government sold approximately 207,000 M1 Carbines rifles, which came standard with 15-round and later 30-round magazines. See Stephen P. Halbrook, America’s Rifle: The Case for the AR-15, at 198 (Bombardier Books 2022).
[6] Aymette v. State, 21 Tenn. 154, 158 (1840).
[7] Fife v. State, 31 Ark. 455, 458 (1876).
[8] Silveira v. Lockyer, 328 F.3d 567, 569-70 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc).
Konstadinos Moros is an Associate Attorney with Michel & Associates, a law firm in Long Beach that regularly represents the California Rifle & Pistol Association (CRPA) in its litigation efforts to restore the Second Amendment in California. You can find him on his Twitter handle @MorosKostas. To donate to CRPA or become a member, visit https://crpa.org/.
“The truest sign of intelligence is the ability to entertain two contradictory ideas simultaneously.” Attributed to F. Scott Fitzgerald.
Minds like Bonta’s are incapable of holding two closely related ideas at the same time. Defense, whether personal, or governmental, require the means to defend one’s person, home, or government. Self defense and national defense are two sides of the same coin, to be honest. Defense means you defend something, and that you are equipped to resort to violence if and when it becomes necessary.
The left loves to parse words. Unfortunately, they don’t know what sex is, (Bill Clinton), nor do they know what a woman is (Ketanji Jackson). They really don’t have any first class minds on their side.
Well, it depends on what the meaning of the word “is” is.
Ha.
Or “I did not have sexual relations with that woman” when “sexual relations” is a very narrowly defined term. Try selling that to your wife or girlfriend. The only reason Hillary bought it ws because she was even more power hungry than her “husband” and she wanted the entre’e to the grey house.
Moderated, and my comment deleted. For what, only the WordPress gremlins know…
In line with a sentiment voiced by jwm recently, being deleted is my line in the sand to take a break from the site for the day. Or two.
This is great stuff. I got 1/3 of the way through and will finish later.
But I needed to add people need to understand this.
I see countless people arguing on Facebook that the AR is not a weapon of war because it is not select fire like the M4.
This is absurd. Especially considering current US military doctrine to essentially only use semi auto. In fact, many of us own ARs that are far better than what the military uses.
Most civilian owned AR15s are weapons of war. Exactly like our founders wanted. There are numerous citations in the Federalist Papers where the authors cite the need for an armed citizenry (militia) as a check against a standing army.
We had just fought an 8 year war with our own Government. (most colonialists considered themselves to be British citizens fighting against a tyrannical DOMESTIC government.
I appreciate that the 2A has been recognized as something acknowledging our right to possess and cary firearms in defense of ourselves. But let’s face it. The 2A isn’t about self defense. It’s about having a populace that is able to overthrow a tyrannical Government.
I do volunteer work with a LGBT gun group. It’s astonishing how many of them FINALLY got this when Trump was elected. Many of them in their Mid 20s had only really been politically aware during the Obama admin and since it was “their guy” they were happy to give him as much power as he wanted.
For this reason, I consider the election of DJT to be the greatest civics lesson ever given to our country’s liberals.
And WHAT did your idiot progs learn? (from Trump or from Bathhouse Barry)
Tyranny is wonderful as long as it’s coming from Democrats.
“I see countless people arguing on Facebook that the AR is not a weapon of war because it is not select fire like the M4.
Especially considering current US military doctrine to essentially only use semi auto. ”
That’s a little exclusionary and very narrow and leaves a lot out.
Basically; The military uses semi-auto because its more accurate for fire placement and uses less ammo, but not to ignore that full (or burst, e.g. 3 round burst) auto is needed too at times even if not as accurate and a bigger waste of ammo. No, it is not true that its “current US military doctrine to essentially only use semi auto” – its doctrine is to use semi-auto for more accurate fire placement and conservation of ammo mostly but not ignore that full and burst auto is there for a reason also.
A civilian grade semi-auto only AR-15 is not an assault rifle for the very reason the military has full auto and burst – the civilian grade semi-auto lacks select fire capability that the military uses to define what an ‘assault weapon’ is.
No, “most civilian owned AR15s” are NOT “weapons of war” simply by being of the type they are as you imply. They are weapons that can be taken into a ‘war type’ situation, just like mostly any rifle can, and then they become ‘weapons of war’ when employed as such so in the possibility of use for such they can then be refereed to in a reference manner for such possible use context as ‘weapon of war’.
Yes, and snipers generally use bolt action rifles so those are also weapons of war once deployed on the battlefield.
I would counter that just about anything becomes a ‘weapon of war’ while employed in war. That includes rifles, pistols, shotguns, grenades, claymores, knives…and then the implements that can be used as a weapon. Kevlar, e-tool, canteen, belt, boots, laces, WP bag, etc. Just about ‘anything’ can be used as a weapon–just depends on one’s creativity. So to speak.
.40 cal,
You do you, bro, but I wouldn’t go down that road. ANY firearm – or edged weapon, or thrown weapon, or bow, or atlatl, or sling, or, or, or, can be and has been a ‘weapon of war’, down to and including the jawbone of an ass (nice of dacian to sacrifice himself to provide a weapon).
An AR15 is at least as much a ‘weapon of war’ as the bolt-action Lee-Enfield .303. The difference is, the actual AR15 semi hasn’t been adopted as a ‘weapon of war’ by ANY military that I am aware of (not talking about ‘one off’ uses, be serious. NO military has adopted the AR15 platform as a standard issue for soldiers . . . PERIOD).
The firearms many colonials were armed with in 1776 were actually superior to the “Brown Bess” musket that was the STANDARD issued firearm of the supposedly most powerful military in the world. And the whole point of the 2A was that the citizens SHOULD have access to weapons equal to those possessed by the “official” military.
And, yeah, you most certainly COULD own cannons, as a civilian, both before and after the Revolutionary War. Repeating pistols, lever actions, and semi autos were widely adopted by civilians BEFORE they became common issue weapons in most militaries. Cf., actually READ the execrable Miller decision (which is still, technically, binding SCOTUS precedent), which argued that the 2A ONLY protected weapons commonly used on the battlefield.
Yeah, my AR15 is a ‘weapon of war’ . . . if I choose to so employ it. My 6.5 Swedish Mauser WAS a ‘weapon of war’, once upon a time. Now it serves nicely for deer hunting. The whole ‘weapons of war’ argument is total bullshit. Line troops STILL use both pump-action, and short-barreled, shotguns in combat. As ‘What The Hell’ pointed out, modern snipers often use ‘old-fashioned’ bolt-action rifles.
And semi-automatic firearms PRE-DATE the Declaration of Independence. This dick-beating semantic battle about ‘weapons of war’ is dangerous. If we concede the anti-gun morons the linguistic battlefield by accepting that ‘weapons of war’ are somehow NOT covered by the 2A, how long do you think it will take them to start pointing to my scoped hunting rifle as a ‘sniper rifle’?
This is a road we do NOT want to go down. F*** ’em. You goddamn right my AR, my 6.5 Mauser, my tactical shotgun are ‘weapons of war’ . . . the minute I choose to employ them as such. And that’s EXACTLY what the Founders intended.
just saying the civilian grade semi-auto AR-15 is not a weapon of war until employed as a weapon of war and not because its type as a semi-auto civilian grade AR-15, but in the context of possible use as such in actual warfare it could be refereed to as a weapon of war but no more than anything else that could be used in a ‘war’ setting.
The civilian grade semi-auto AR-15 was not created as a ‘weapon of war’, it was not created as an ‘assault weapon’ – it is neither in its creation, in its context as a possible ‘weapon of war’ or in ownership or possession it is not an ‘assault weapon’. The military grade AR-15 was created as a ‘weapon of war’, the civilian grade semi-auto AR-15 was created as just that in its intent. Its ‘cosmetic’ styling that looks like its military grade cousin has no bearing on the intent or function for the civilian grade semi-auto AR-15 – it is a semi-auto rifle intended for the civilian market, its use or misuse or function or possession does not define anything otherwise – its possible application as a ‘weapon of war’ in the sense of the 2A for defense against tyranny would refer it as a ‘weapon of war’ but no more than any other firearm – its use and possession as ‘arms’ to keep and bear for exercise of the 2A is simply that for constitutional and lawful purposes.
Are we sure we want to get into defining, and locking us into, commonly held arms being subjected to a ‘weapon of war’ standard? That’s a slippery slope, to get away from the 2A ‘arms’ defense and lawful constitutional purposes into defining ‘as’ as only ‘weapons of war’. That’s exactly what anti-gun has been trying to do, define the civilian grade semi-auto AR-15 as a ‘weapon of war’ to regulate it as such. So do we want to go into court and declare ‘weapons of war’ instead of ‘defense and lawful and constitutional purposes’ to pigeon hole defense into meaning ‘weapon of war’ only if there is a war? That’s the trap Bonta is laying here, that his ‘weapon of war type check against tyranny’ stance is justified and thus define the anti-gun term to their advantage – its the old argument used previously that got us to having to battle anti-gun in court today, an argument anti-gun used, that the 2A was intended for militia use and not for those not in a militia, so are we going to define now ‘weapon of war’ that points straight to a militia type use as a ‘weapon of war’ and pigeon hole it exactly where Bonta wants it to be?
Not saying the founders did not intend a use of firearms was not or could not be as a ‘weapons of war’, but, that does not define the civilian grade semi-auto AR-15 as anything other than an ‘arm’ for which there is a right to keep and bear for its use as a firearm (e.g. hunting, sporting purposes, etc…) and defense no matter if that be defenses against a criminal or a tyrannical government.
Not saying that ‘weapons of war’ are not covered under the 2A. Just saying the civilian grade semi-auto AR-15 is not a ‘weapon of war’ until used as such in a necessary war type usage e.g. justified use against a tyrannical government and their minions of tyranny as the constitution and founders intended.
So we can let the anti-gun get away with ‘criminalizing’ law abiding people for simply exercising their constitutional right by them using terms such as ‘weapon of war’ and we can play into that game of falsely applied terms of ‘weapon of war’ and ‘assault weapon’ to let them demonize what is essentially a normal firearm and us …. or we can rise above it and clearly define they have nothing to worry about from the law abiding 2A people with civilian grade semi-auto AR-15’s as long as they do not become part of that tyranny constitutionally and justifiably needing to be defended against because then it would be them that makes the civilian grade semi-auto AR-15 a ‘weapon of war’.
Golly Bill, we seemed to do okay in WWII and in Korea with those slow-firing, non-military semi-automatics. “The greatest battle weapon ever devised” or words to that effect from the general officer the Germans consider the most skillful and dangerous general in command of enemy troops. While the rest of all the allied troops were dithering, he was the one who got his troops to the Bulge in order to help stop the German advance. Of course, as some will point out, the Germans had run out of fuel which kept them in place so Patton could get at them. Otherwise, all of the allied forces might have been driven into the sea.
Old Lefty, for that time those weapons were the best that the American manufacturers made. They were at that time, rather rapid fire. For it’s time, it was the “greatest battle weapon ever devised.” to that time.
Fast forward to the 1960’s and ’70’s. The M14 gave way to the M-16. IT was believed that soldiers need to put out more lead to do the job.
The AR-15 IS NOT a military rifle. It is a civilianized version of the M-16. It is not capable to three burst nor automatic fire.
If the difference is inconsequential then why don’t we have a third pin? It’s like $5-10 of parts that cause feds to shake in their boots.
The 2A isn’t about self defense. It’s about having a populace that is able to overthrow a tyrannical Government.
Correctly stated, the 2nd Amendment is about “The People” (citizens) being able to keep and bear arms – for ANY lawful purpose. That includes self-defense, hunting, target shooting, competition, and providing resistance against a tyrannical Government.
There is no “but” or other exception in the 2nd Amendment. If the arm is bearable, then it is protected. Non-bearable arms (cannon, tanks, etc) are perhaps disputable, although I would tend to err on the side of “allow” rather than “prohibit” or even “restrict”. The 2nd Amendment does not indemnify you against your responsibilities or actions with said arms.
300BF, you said, “If the arm is bearable, then it is protected. Non-bearable arms (cannon, tanks, etc) are perhaps disputable, although I would tend to err on the side of “allow” rather than “prohibit” or even “restrict”.”
The 2A does not say, “The right of the people to own arms they can both keep and bear…” It says “The right of the people to keep and bear arms…” Those are two distinct actions, “keep” and “bear.” So, since in the late 18th century, many private individuals owned canons and warships, and no founders differentiated between bearable arms and larger arms, I would say that ALL arms are covered under the 2A.
I would say that ALL arms are covered under the 2A.
I would concur.
At the same time, I am a realist who can posit well-reasoned responses to arguments such as:
* “2A states that one must be part of a Well Regulated Militia to keep/bear arms” (No SCOTUS ruling has *ever* agreed with that. Heller was 9-0 on that point)
* “Only arms relevant to the military are protected” (USSC in Miller, also presented as an argument in this paper: “The ‘arms’ here meant are those of a soldier. They do not include dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots.”. I disagree – as you said, all arms should be covered by 2A – but you are responsible for your actions.
* “Only bearable arms are protected” (as you point out, cannon and other non-bearable arms were privately owned and even itemized elsewhere within the US Constitution)
* “Only open-carry of arms is protected” (again, used as an example in this paper) – I disagree. The manner of bearing is not limited in the wording of 2A.
Cheers..
Amen, Brother. I would also point out that the Constitution allows congress to issue letters of marque and that provision is still active. A letter of marque of necessity means that the bearer will need the weaponry to overcome the armed resistance of ships of war of an enemy state or armed pirates. In the 18th century, that was ship-mounted canons. In the 21st century it would mean long range missiles and other armaments of the 21st century.
It is not inconceivable that a very wealthy businessman might see an opportunity to increase his wealth by recapturing ships that pirates have captured around the Horn of Africa or in the Straits of Malacca and collecting a bounty not only on the pirates themselves but the ships and their cargos.
And don’t forget the lawful purpose of over throwing a tyrannical government.
Very well written and researched article! Thank you. It has provide me with further new material to dig further historical considerations of firearms and laws in the U.S.. There can be NO DOUBT that the founding fathers and even early 20th century writings and thoughts of limiting what arms could be held by the populace embraced a broad interpretation INCLUDING weapons or war. I look forward to when someone or some organization has the resources and balls to launch a constitutional offensive in the courts against the National Firearms Act and the Firearm Owners’ Protection Act of 1986 – both being blatantly unconstitutional.
We’re not getting the NFA repealed outright, even Scalia recognized in ‘Heller’ that there were exceptionally-dangerous firearms that could be regulated. (Read, full-auto machineguns).
Getting the ‘Hughes’ amendment repealed, allowing new select-fire weapons to be manufactured-registered, we have a very good chance of succeeding on.
Also, getting suppressors removed from the NFA is attainable, since there is little or no regulation on them in Europe…
Scalia was wrong though. Nothing in the 2A carves out an exception for “exceptionally-dangerous weapons.”
The fact that the NFA didn’t even exist until 1936, (144 years without it), seems to affirm the fact that ALL arms are protected.
“In neither Heller nor Bruen did the Court find” I don’t think SCOTUS has been ASKED for an opinion on guns/resisting tyranny . Is too ridiculous to even bring it up. It’s like asking “why does the sun rise in the East”.
It’s the same mindset that rides with Gun Control wherever it’s been or wherever it goes. It’s the upper crust looking down their noses at those who do not fit the mold. And to Control those who do not fit the mold in woke marxist America it begins with taking firearms out of the hands of misfits exercising a Constitutional Right.
It’s the same sick Gun Control that is rooted in racism and genocide and lives on today in the democRat Party. Their backdoor to your rights is the criminal misuse of firearms. Criminal Misuse the law abiding have nothing to do with yet the innocent are to pay.
If the democRat Party cannot see the rot inherent with their beloved Gun Control and realize the error of their ways they will wish one day they did not start a fight they cannot win just like the Gun Control military wing of the democRat Party known as the kkk did not win and the Gun Control nazi party did not win and Red Coats did not win.
Living here in California and hearing what Newsome and Bonta, and the other elected liberal worms espouse about gun control, one must wonder if they have ever read The Constitution, or even have the intelligence to comprehend the words written in It and The Bill of Rights. Or is it that their power has corrupted their minds, placing them above the constituents that placed them in the position?
Granted, I see most people as sheep, wanting to be protected from the wolf by the government that takes from them their monies and freedom in exchange for a semblance of security that can never be.
The Left, AG Bonita et el well understand that keeping and bearing weapons of war against tyranny is the purpose behind the Second amendment. That IS THE WHY behind their anti-gun for We The Little Peeps fetish. A right not exercised is a right not held. We the Little Peeps have been “keeping and bearing” arms for 240+ years under the Constitution, and still America is under a slo-mo Pearl Harbor by politicians. Japanese Admiral Yamamoto should not have feared “a gun behind every blade of grass.” He should have merely filed for political office and had a bit of patience to overthrow America. Insurrection against America is alive and well by the Left. They just aren’t using firearms. Listen to what the Left accuses the Rght of, and you will know what they are doing.
Vets sign on that proverbial dotted line, leave families, train, kit up/go into harm’s way to defend freedom on foreign soil. And, then return to civilian life to enjoy those freedoms defended while politicians take those very freedoms from under their noses……nary a shot fired in defense on home soil. SH, RE, CMAO
In reality 2/3 of the American people never supported the revolution. It turned out to be the worst mistake America ever made as it ended up putting in power the greedy disingenuous merchants that were too cheap and stingy to pay a few pennies in taxes to support the hand that was feeding them i.e. the British Government. Both nations were prospering through global trade and the revolution not only set back America’s economic development by decades but the gangster criminal merchants of American enslaved the people by denying them the right to a truly democratic parliamentary government with multiple political parties.
The criminal founders set up an oligarchy of the rich and powerful and it remains so to this very day with the people having little or no say in the way their government is run as it is based on pure corruption.
Congressmen do not run for office for the welfare of the people but rather to become millionaires through legalized graft and corruption. Its easy in Capitalvania which has the most corrupt government on the planet.
In reality the sly disingenuous gangster criminal founders of the U.S. “deliberately” wrote 2A in the vaguest of terms to give the people the illusion they had the right to own personal arms but in reality it let the courts ban and restrict them, which is exactly what they have done since the signing of 2A. No prior gun control laws were rescinded after the signing of 2A and as a matter of fact they immediately started to increase and have done so right up to the present day.
We now live in the 21st Century of electronic surveillance where nothing is private anymore. To suggest that seditant, overweight greedy and indolent White Men would or even could start a revolution without receiving billions in aid from a foreign country is ludicrous. And due to the fact that since the U.S. has now become the new 21st Nazi’s with jackbooted troops stationed in over 50 countries there is zero chance any foreign nations would spend any money to help start a new revolution in the U.S.
It is truly hilarious to see a bunch of bearded AR15 waving ignorant Hillbillies riding around in a pickup truck screaming for the overthrow of the Federal Government. Show me the difference between American bearded hillbillies and the bearded Islamic radicals riding around in pickup trucks waving AK47’s. Both radical groups want a dictatorship and a religious caliphate.
On Jan. 6th the rioting Hillbillies found out that the American people turned them in to the Federal Government because they realized how radical and dangerous a group of Trump manipulated morons they were.
A new revolution is the wet dream of the Hillbilly who still does not realize he has been manipulated since the power mad, incompetent and worst U.S. General in History, George Washington, relied on the French to overthrow the British Government in the Colonies so that the rich greedy Colonial corrupt Merchants could laugh all the way to the bank.
Sound suspiciously like a vote for the keeping the monarchy, dashing the rights of the colonists, disvowing people’s representation in government all because the monarchy itself and Parliament wasn’t disingenuous and greedy as well? That and never mentioning how powerful and influential that one particular English company called the British East India company became… I daresay, your argument has no teeth or gums.
dacian is all for living under a monarch and tyranny.
to MrMax
You are fixated totally on the colonial period and not the evolution of the British government or what happened to Canada that secured independence from Britain through peaceful civilized means. If the criminal George Washington had been hug by his dirty balls the U.S. would have ended up with a parliamentary government and multiple political parties much as Canada and Britain have today which is a much truer from of democracy and I might add light years less corrupt.
Now your opinion is forming on quick-sand with a giant “What if…?” statement. All that comes after is totally heresay that the colonies would have evolved the same way as Canada? To do so also turns a blind eye to the oppression, subjugation, prejudice, and tyranny the Crown actually did (historically) impose on the American colonists which got worse (not better) as time went on. So your solution is “just wait 100-200 years” and it will all magically turn out all right? And that’s if you would call Canada being this beacon of democracy that’s uncorrupted by private interests. I could write a tome on that topic.
to MrMax
quote————All that comes after is totally heresay that the colonies would have evolved the same way as Canada—–quote
You are not very well versed in American history. Not only were 1/3 of the Americans against the war with another 1/3 ambivalent but 150,000 Loyalists said the hell with the new America and fled to Canada after the ill-conceived revolution was over. They obviously had a great influence in convincing the Canadians to seek independence peacefully. And if they had not fled America and the revolutionary war would not have occurred that common sense would strongly indicate America would have followed the same path as Canada took.
dacian the demented dips***,
I daresay, given the antics of Herr Trudeau, Castro’s bastard son, recently, there are MANY Canadians who would take exception to your assertion that the British or Canadian governments are somehow ‘superior’ to ours.
But that is neither here nor there. You are free to hie your worthless, obnoxious @$$ off the the European socialist utopia of your choice. Of feel free to bugger off to Venezuela. I’m sure the Red Panda would be happy to accept your worthless @$$, if for no other reason than the propaganda value.
Don’t let the door hit ya where the good Lord split ya. As Curly Bill said, “Well . . . bye.”
PS: You will NOT be missed. And it was not nice knowing you. And thank God, Yahweh, Jesus, Buddha, Zoroaster, Allah, Mohammed, and the spirits of Shinto, that you have not fouled the gene pool by reproducing.
Leave it to dacian to side with an empire that was treating brown and black folks with abject cruelty all around the world. Cheer lead for an empire that was soaked in the blood of native peoples.
And he claims he’s not a fascist.
“…much truer from of democracy…”
Well, duh, Johnson. They set this place up to be a republic, which is least likely to end up in tyranny. Tyranny of a despot on one hand, and tyranny of the majority on the other, with a republic in the middle, remote from either extreme. You and your fellow Stooges personalities hate the idea of a republic, because you yearn for tyranny.
dacian the DUNDERHEAD. “If in one hand and you know what is in the other.”If” is a very small word which means nothing. The fact is we do not have a “parliamentary government.” THANK GOD!
Ah, another communist troll I see. Show us your Antifa card! Or is that FSB?
Not that advanced and honestly sad to look into as the trolls that occasionally hijack his name (previous ones as well) tend to do better.
Still more gibberish. Amazing.
Your “2/3 of the population never supported the Revolution” is likely in error by at least 15%. I don’t know what source you are pulling from but most of the information I have found states no more than 40-45% of the population supported the Revolution, only about 15-20% were Loyalists, and the rest switched sides depending on who the winners at any one time were in any particular place. Let’s just say it is quite a stretch to think this small percentage of the Loyalists made that much of a difference in Canada as to what “path to independence” they’d take. Given their population was smaller and they had substantially less armed forces than the American colonists (and it took 8 years of war before the peace treaty was signed with England), I don’t think the Canadians even thought they had snowball’s chance in hell of succeeding against the British – so why even try. I hardly think it was a well-thought-out choice of “we’ll wait 200 years and eventually we’ll be free”.
to MrMax
Canada did not wait 200 years for independence. For all practical purposes it was free in 1867 although it did have a close working relationship with Britain until 1982 but this in no way meant it took orders from Britain in any way. The Canadians, unlike the American hillbillies, saw that a close relationship with Britain had both military and economic advantages. Too bad the American Hillbillies never learned about realpolitik.
@dacian
“Canada did not wait 200 years for independence. For all practical purposes it was free in 1867 although it did have a close working relationship with Britain until 1982 but this in no way meant it took orders from Britain in any way. The Canadians, unlike the American hillbillies, saw that a close relationship with Britain had both military and economic advantages. Too bad the American Hillbillies never learned about realpolitik.”
False
Canada became a self-governing dominion in 1867, while retaining ties and ‘subject status’ to the British crown. Canada gained legislative independence from Britain in 1931 and formalized its constitutional independence from the UK when it passed the Canada Act in 1982.
Canada became a self-governing dominion not because they were independent, but because the British decided to let them run the country themselves as long as they behaved and they allowed Canadians to inhabit some offices normally held by British from the U.K. directly. Just because a country becomes a self-governing dominion does not mean it is its own country or free or independent. There is a difference between a ‘dominion’ and ‘independence’.
When a country has complete independence, it is truly sovereign. A country that has been granted ‘dominion’ status from its colonizers is not free or sovereign because they are not independent and are still ‘subjects’ of the colonizers.
It wasn’t until 1931 when Canada gained legislative independence, thus able to make its own laws where before that even though a ‘dominion’ the British were still dictating and deciding what Canadian law would be overall, that Canada had a shot at becoming independent but they still didn’t take it.
It was not until 1982 when Canada finally used that legislative independence and formalized its constitutional independence from the UK when it passed the ‘Canada Act’ that Canada became truly independent thus sovereign.
So it is not true that “Canada did not wait 200 years for independence” … they ‘waited’ a lot longer. So overall, Canada has only been a truly independent country for about 40 years. Its too bad the Canadians didn’t understand “realpolitik” because for 51 years despite having the means of legislative independence and the ability to declare their selves formally independent they didn’t. On the other hand us American ‘hillbillies’ were a lot faster on the uptake there and understood the “realpolitik” a lot faster than those slower Canadians.
Your added comment hasn’t much actual content other than to wash-over the fact Canada truly wasn’t independent until 1982 (see .40 Cal Booger’s detailed reply). There’s a difference between needing to or having to “wait out” the demise of an empire and having the means and fortitude to fight for your freedom. Certainly, I can see that Canadians saw the American Revolution took an 8 year war with Britain to be free – costly in lives and resources. At what price freedom? And, as I said, Canadians likely did not have the means or industry to pull it off anyway. The American colonies nearly lost many times, but persevered nonetheless. For you, dacian, to disrespect and demean (both our beloved hillbillies) and our Founding Fathers and ALL the revolutionaries – especially if you are an American citizen yourself – in disparaging them as slow-witted, dense, and having little intelligence or good sense. The war of independence was by no means a knee-jerk, flippant, reaction to a few “improprieties” or inconveniences. The reason for the revolution came for multitudes of reasons that, in aggregate, the people felt they were living under a tyrannical, oppressive, and unrepresentative rule. All your logic about Canadians being so wise and smart about waiting nearly 200 years to be independent – maybe that was good enough for them and more power them if that was to their liking. It obviously wasn’t good enough for a significant number of American colonists, enough so that they were willing to risk their lives, their family’s lives, and their fortunes for living free.
Independence for Canada? “Chuckles” is STILL your head of state! How’s that “independent”?
@dacian
“In reality 2/3 of the American people never supported the revolution.”
False
You again copy-n-pasted without understanding the context or having any real knowledge of the subject.
If we look at the context and the actual sentiment of the times, we find that although its assumed assume the colonies were united in their quest for independence in reality there were three groups. Those three groups being patriots, (British) loyalists, and those who were neutral.
Patriots (40% – 45% of the population) were active supporters of independence and willing to fight for it. Loyalists (15% – 20% of the population) were sympathetic to the British cause and willing to either fight against their fellow colonists or maintain ties with Britain via trade or military support. Neutrals (~40% of the population) were those who were pacifists, recent immigrants, or simply apolitical and had no interest in the matter or commitment to either patriot or loyalist and had no effect either way and neither supported or opposed.
So of those of the population who supported the revolution for independence it was patriots which were 40% – 45% of the population which is not 1/3 (33%) of the population. Of those opposed it was Loyalists who were 15% – 20% of the population.
The 1/3 idea comes from the idea that there were three groups, so if only one group supported it then (math tricks) ‘lets see 1 part of three is 1/3 thus 1/3 of the population supported the revolution” which is not true because it was actually 40% – 45% which is greater than 1/3 (33%) – and only 15% – 20% opposed the revolution (because the neutral group was neutral and neither opposed or supported).
Of those who were active participants population in a support or oppose context (from which we exclude the neutral group because they neither opposed or supported) – it can be said that the majority of the population supported the revolution.
So to summarize for you dacian:
1. It is false that “2/3 of the American people never supported the revolution.” – because the neutral group neither supported or opposed.
2. Of those opposed it was the loyalist who were only 15% – 20% of the population which was less than 1/3 of the population.
I don’t expect you to understand daican, I know fourth grade math is hard for you.
Great article.
Get these sorts of messages out to the swing voters.
California’s AG Rob Bonta, like a lot of government types who are trying to eviscerate the constitution, wasn’t born in America. He was born in the Philippines.
BLAH BLAH BLAH BLAH…..the user. not the weapon design, determines whether the weapon is a weapon of war or not. Rocks were weapons of war for centuries. Words have been weapons of war. Ideas are actively being used as weapons of war.
I always thought that personal defense and defense of the Constitution was kinda the same thing.
So did I!
Excellent historical review.
Thanx, to the author for doing that.
For once Dacien is correct on 1 point. About 1/3rd or the population supported the Revolution. And about 1/3rd supported the Monarchy. With the remaining 1/3rd who didn’t see much difference or just didn’t care either way.
I do wonder if Dacien has ever bothered itself to read the Federalist Papers, or any of the other writings of the founders. Perhaps if he/she/it had, they would understand why we have the Constitution and BOR.
Objection, Counselor, assuming facts not in evidence.
What causes you to believe that dacian the demented is capable of reading, or of understanding what he has read? Do you see any evidence to support this supposition in this postings on this site?? If so, please point them out to me.
A new thought and a cold glass of water would kill that boy dead.
dacian is correct because he read it someplace and copy-n-pasted, not that he is correct in his understanding and context and knowledge. But what he is saying is false.
If you look at the context and the actual sentiment of the times, we find that although its assumed assume the colonies were united in their quest for independence in reality there were three groups. Those three groups being patriots, (British) loyalists, and those who were neutral.
Patriots (40% – 45% of the population) were active supporters of independence and willing to fight for it. Loyalists (15% – 20% of the population) were sympathetic to the British cause and willing to either fight against their fellow colonists or maintain ties with Britain via trade or military support. Neutrals (~40% of the population) were those who were pacifists, recent immigrants, or simply apolitical and had no interest in the matter or commitment to either patriot or loyalist and had no effect either way and neither supported or opposed.
So of those who supported the revolution for independence it was patriots which were 40% – 45% of the population which is not 1/3 (33%) of the population. Of those opposed it was Loyalists who were 15% – 20% of the population.
The 1/3 idea comes from the idea that there were three groups, so if only one group supported it then (math tricks) ‘lets see 1 part of three is 1/3 thus 1/3 of the population supported the revolution” which is not true because it was actually 40% – 45% which is greater than 1/3 (33%) – and only 15% – 20% opposed the revolution (because the neutral group was neutral and neither opposed or supported).
Of those who were active participants population in a support or oppose context (from which we exclude the neutral group because they neither opposed or supported) – it can be said that the majority of the population supported the revolution.
The militia was replaced with lawyers.
And on the other side of the argument is Justice Scalia’s opinion in Heller.
Yeah, no one in their right mind is going to let Joe Six Pack get a hold of a MANPAD, RPG, mortars, etc.
Idiots are already killing each other by the thousands over road rage and common insults.
Drawing a blank but one of the Justices in an interview stated that a MANPAD would fall under the 2nd Amendment cause it is “BEARABLE”!!!
So therefore Anti-Tank weapons would fall under the 2nd Amendment!!!
Im afraid that you’re all missing the bigger picture.
PR and narrative control.
Do you people really think the nazis just suddenly willed into existence?
It was the constant demonizing that did it. “theyre’ the bad things in our midst”. If a Jewish person dared to strike out in violent retaliation against the oppressive Nazi Regime before it got into full genocidal swing, they’d go “aha, see! They are definitely dangerous and harmful to us GOOD and RIGHT people. They are BAD and WRONG people”.
This is what they managed to do back then. Those lessons have been learned so well today, that psyops are continually being affected against the populations of the world.
We’ve lapsed back into the belief that the government is end-all, be-all. We’ve lapsed back into the view that government and its police and military have divine right of violence, while average citizens have NO right to violence.
We all take for granted that we have lived a good, easy life.
We all ignore the fact that governments, like all contracts, and associations of life, are NOT REAL. They are Social Constructs. I hate having to use that phrase, but if its true of anything, its certainly true of Law and Government.
Just as you must believe in your relationship to your family and friends for those relationships to exist, you must believe in your relationship to law and government for it to exist and hold sway over you, and you must believe in it being forcibly applied to others as well. After all, your relationship to your government is largely non-consensual. You’re forced to have one wherever you go in the world.
Harvey Weinstein got in trouble ofr abusing his power. But there is no check on government abuses. Remember WACO? How come there wasnt a violent citizen reprisal? Because “its wrong for citizens to be violent and violence is the divine right of govt, even if they sometimes abuse it”.
You’ve become so well trained to see government as omnipotent and omniscient that while you all mouth platitudes towards this “if muh tyranny ever came why i’d..” nonsense, while you have ritually ignored continued violations of rights by tyrannical behavior. Im not just talking about guns but the lockdowns too. The constraint of rights and the murder of the elderly under certain governors and where were the guns to right this wrong?
If you believe there’s always a time to talk it out, that’s how it happened for Jewish people as well. “We must not do violence, surely we can talk our way out of this”.
The sentiment of 2A vs tyranny is nice, but when tyranny comes, it is never recognized as such at large because the whole have been sufficiently conditioned beforehand, along with their personal self interest to stay alive, not be called terrorists, etc.
Look how you mock the people caught in Jan 6 or during other FBI psyops. You mock those people publicly, instead of respect their attempts. “But that wasnt REAL tyranny and they’re wrong”.
This happens again and again and the tone is set in the minds of everyone to stay quiescent. This is narrative building within your own minds. Ever psyop by the FBI and sting, pulling in hapless people, further stays YOUR hand in case real abuse and tyranny shows up, because its called CONDITIONING.
Who Wants to Tell California AG Bonta that Access to ‘Weapons of War’ as a Check Against Tyranny is a Core Tenet of the Second Amendment?
I would be more than happy to.
Indeed, Ross. And in the past, a rather long, Mag flashlight has served me well for self-defense. Is that considered a “weapon of war”, too, deemed worth of confiscation? What about the sword some elderly lady in this neck of the woods had under her bed, that she damned near chopped a drunken man’s hands off, when he accidently stumbled into the wrong house late one night? The list of such “weapons of war” could grow quite lengthy with the crooks we have trying to tell us what to do.
“Show ‘N’ Tell” is what is needed…a good ole Liberal application of the 2A.
Every attorney that goes before any court arguing in defense of the Second Amendment should always display photos of the famous ‘Minuteman’ statutes that are located in Lexington and Concord, MA. Those statutes represent the very essence of the meaning of the Second Amendment and what it represents. The ‘citizen-soldier’ of the American colonies used his personally-own firearm as a ‘weapon of war’ to fight tyranny and oppression. Without those ‘weapons of war’ we would still be British subjects, not free American citizens. Our Founding Fathers knew full-well that an armed citizenry was essential for maintaining our newly fought-for freedoms. Don’t let the Communists take that away or we are doomed to fall back into tyranny.
On December 7, 2022, leftist ex-Peruvian president, Pedro Castillo, declared the Peruvian congress dissolved and ordered Peruvians to “turn in” their guns. The late Venezuelan dictator, Hugo Chavez, issued such an edict after coming to power. Tyrants fear revolt and ALWAYS disarm the population if they can. Modern tyrants are no different than 18th century ones, like King George III.
History……learn from it; be doomed to re-live it; or, die from it. Mr. Makowsky, 10th grade World History, was right after all.
“History……learn from it; be doomed to re-live it; or, die from it.”
History teaches us that we happily learn nothing from history. Every generation believes “things are different, now”, and theirs is the bestest and the brightest.