The Illusive Second Amendment

Opinion by Contributor John McNair

USA – -(AmmoLand.com)- I watched Tom Selleck on The Rosie O’Donnell show May 19, 1999 where O’Donnell basically ambushed Selleck on his pro-gun control support of the Second Amendment. Although he is one of my heroes of the TV world he was ill-prepared to stand his ground. He did the best job he could but a little research to support one’s views as a spokes-person would have allowed Selleck to wipe the floor with O’Donnell.

O’Donnell’s stance was that the need for large capacity magazines and assault-styled weapons for hunting was a fallacy so the Second Amendment should be repealed.

If you wanted to give yourself an unassailable perspective from which to support your pro-Second Amendment rights, you first must understand constitutional history and why the Second Amendment was written the way it was and why it was included in the Bill of Rights. First, understand that the Bill of Rights is simply the first ten amendments to the Constitution, all written by James Madison. Second you must read Federalist Paper, embeded below, over and over again until you thoroughly understand the importance of what Madison was saying.

The Federalist Papers were actually letters written to and published by newspapers which served the constituents of the framers of the Constitution. They were written by Madison, Hamilton and Adams under the pseudonym, “Publius”. Federalist Paper #46 was written by Madison on January 29, 1788.

Why every gun owner and pro-gun advocate doesn’t have a copy of #46 hanging from their wall is a ponderous thought. It says nothing of any personal right to own firearms for personal protection, nothing about hunting and certainly nothing about “sport shooting or sporting firearms. It was all about defeating Government. Read or download your copy below.

The framers of the Constitution were well acquainted with the historic facts where nation after nation, kingdoms, countries, serfdoms and any government which had a standing army always evolved to where the army was used by the ruling factions to subdue the citizenry and subjugate them into poverty. The Federalists wanted a strong central government but were deftly afraid of the power of a standing military, but with the threat of war from France, Britain or Spain the newly fermented America could ill afford not to have the protection of a well-oiled military.

Historically, European nations and kingdoms required all its citizens to fight for the survival of that nation… if physically able. Additionally, each combatant was required to furnish their own tools of warfare from spears, lances, bows and arrows, horses to the latest musket, perhaps a cannon or if need be, even a bucket of rocks; Whatever they could muster for the defense of the nation. The framers were aware of this practice and Madison incorporated this into his ideas for the drafting of the Second Amendment.

Madison explains in his opulent communicative style the present need for a standing army. However, he offers the construct of allowing each and every citizen who are not subjects of the contemporary standing military, the God-given right of owning a weapon equal to those owned by the contemporary military so that the future endeavors of the ruling elite could not lead to tyranny by way of the military. Madison writes :

“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 not be going too 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 twenty-fifth 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 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. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”

Simply put, Madison explains that an armed citizenry could easily outnumber and out-gun the military and protect the nation or state from the tyranny of a standing military, given equal armament.

The Constitution gives the states the right to form militias of non-military personnel should the need arise. It is this militia of which the Second Amendment speaks.

Article I, Section 8:

“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;”

Article 2, Section 2:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States”

People often mistake these two sections as the controlling verbiage regarding states and their militias but they are NOT speaking of the militias of the Second Amendment. The militias of the Second Amendment are defined in the Compact Clause of the Constitution, that is, specifically Article 1, Section 10, Clause 3 :

“States may, however, organize and arm a militia according to the discipline prescribed by Congress.”

There has been an ongoing argument that the National Guard is “THE” state militia described in the Compact Clause but that’s not true in fact and is not open for interpretation. “The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard” . It is the Compact Clause and the Second Amendment which forms the foundation by which the citizenry are given the organization to fight the federal government in times of tyranny.

Madison’s explanation in Federalist 46 clearly forms the understanding that militias may be necessary to fight the federal government, so, to allow the federal government to have any authority whatsoever over the state militias would be without reason or sense. In the same perspective the founding fathers never envisioned the hijacking of the Second Amendment with the Commerce clause.

In 1934 Roosevelt and his New Deal Democrats thought up the scheme of using the Commerce Clause to circumvent the enumerated powers clause of the Constitution allowing the federal government to hijack the authority of the Second Amendment away from the states in the guise of the National Firearms Act. That is, they maintained that the sale and distribution of firearms across state borders allowed the federal government to not only regulate the sale of firearms but also any aspect of owning, building, shipping and transfer of firearms and also any social laws associated with firearms like the age at which a person may own or buy a weapon.

The first test case of this new-found authority of the National Firearms Act (NFA, of 1934) came in the form US v Miller. Miller was arrested for carrying a sawed-off shotgun across state lines in defiance of the new National Firearms Act. Miller was initially found guilty but an appeals court threw out the conviction on grounds that the NFA was unconstitutional. Chief Justice McReynolds of the Supreme Court upheld the conviction based on the supposition that a sawed-off shotgun was not a weapon of the contemporary military. McReynolds failed to elaborate on the Constitutionality of the NFA but went on to write that to circumvent one amendment with the use of another amendment was an abomination and was outside the spirit of the Constitution.

Incidentally the New Deal democrats used the same methodology to take over the authority of the states to supervise insurance and the manufacture of drugs. The Commerce Clause has been widely used to justify the imposition of federal rule in many ways. This federal authority over the Second Amendment was widely expanded by the Gun Control Act in 1968 by the Johnson Administration to where federal authorities coined the use of the term “Sporting firearms”…a term which has never been defined but rather described as a firearm having certain features and is used to limit the ownership of many types of firearms. The idea of “sporting firearms” was a deception invented by Johnson’s Democrats to refocus the idea that firearms were for a defense against tyranny and substituted the idea that guns were for sport. Sporting firearms look benign and harmless and are for fun and if they look menacing they should not be owned by the public. The GCA also started the registration of firearms but this was stopped by some new legislation termed the Firearms Owners and Protection Act of 1986. It was an act that seemed to be favorable to gun owners but was a smoke screen for the government to end ownership of fully automatic firearms although it was touted as the end of gun registration. Guns are still registered in unique ways that are not openly portrayed as actual registration.

The Second Amendment was never envisioned to be in the control of the federal government because the Second Amendment was meant to be a tool to control the federal government. Else, what would be the purpose?

That brings us to District of Columbia vs Heller. A case many regard as a Godsend to the proponents of the Second Amendment. Heller sued the District of Columbia so he could get a permit to carry his pistol in his home without it being encumbered with locks and so forth. An appeals court found in favor of Heller so the District of Columbia appealed to the Supreme Court where the decision was again found in favor of Heller. The District of Columbia was forced by Heller into allowing the licensing of firearms in the home without all the hindrances.

Chief Justice Scalia wrote the decision for the majority: https://www.law.cornell.edu/supct/html/07-290.ZO.html

Although it was positive in some respects it should be viewed in contempt in others in that it fails to address the circumvention of the Second Amendment with the Commerce Clause. It did not remove the authority of the federal government. But that aspect was not argued as an element of the suit. Also, it refocuses the intent of the Second Amendment from preservation of the state to personal protection.

Neither Madison, nor Hamilton nor Adams ever mentions any right of the individual to carry arms for any reason other than for the protection of the state or its people from the tyranny of the government and its standing military. Scalia breaks down each word of the Second Amendment and cites meaning and relativity to it in a modern-day sense…like the word “arms”… does it define firearms in the modern-day meaning and so forth? He also inspects each verb and noun for application. He goes on to say that “to bear arms” is not limited to military use.

“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” (What? Battling the federal government is not a type of confrontation?)

…“We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”(Miller says that the Second Amendment protects those weapons owned by the individual used by the contemporary military.)

… “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. (Ever hear of the Viet Cong?) But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. “(Scalia is saying that to combat today’s military would require weapons not allowable in today’s society.) Also, Scalia seems to have forgotten the American Indians, the Viet Cong, the Middle East and factions in Africa where modern weapons were overcome with heart, soul and human courage.

…” In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

…”That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

It is clear that the framers did not allow the Second Amendment to be a ward of the federal government as it was not enumerated. History, however, is replete with examples where the federal government ignored the word and spirit of the Constitution and took the states right to govern its citizenry as it saw fit. Even though Justice McReynolds noted that the arms allowed by the Second Amendment were those of the contemporary military, Scalia bends and shapes the Second Amendment to end its attachment with the protection of the state and molds it into solely for the protection of the individual leaving the concept of militias behind. Scalia noted in Heller that the arms of the Second Amendment could never equal the planes and the tanks of today’s modern army. Quietly, the framers biggest nightmare has come true and tyranny by the federal government and its standing military has come in the form of the massive military industrial complex Eisenhower once warned us of.

So, the federal government has morphed the Second Amendment into a law of self-protection and away from a law of state preservation. Some people are wondering what side Scalia was really on by changing the focus of the Second Amendment. If it was more about self protection and not state protection then, not too far in the distant future, Senator Chuck Schumer will be telling everyone that he agrees with Heller, then adding… but people don’t need the likes an AR-16 for “self-protection.” If Scalia had banged the drum toward preservation of the state the type of firearm could not be limited but now that it’s all about self-preservation and protection Scalia has opened the door to a new wave of restrictions and limitations.

John McNair

FEDERALIST No. 46 the Influence of the State and Federal Governments Compared

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