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Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 14
Militias and Standing Armies
2nd
Amendment: Keep and Bear Arms
The 2nd Amendment does not
give you the right to keep and bear arms.
The 2nd Amendment does not protect you against the government from
taking away your guns. Your rights are
given to you by God, and protecting your rights is your responsibility. Like anything else you own, if you give away
your rights, or allow someone to take them, they may still belong to you as an
unalienable, God-given right, but you have given up all access to them, and can
no longer exercise those rights.
In the Washington, D.C. v.
Heller case in 2008 the Supreme Court of the United States determined that
the right to bear arms is an individual right, as opposed to a collective
right which would only allow the bearing of arms for the purpose of
participating in government approved groups, such as law enforcement agencies.
During the early years of the
United States under the United States Constitution, the Anti-Federalists feared
the creation of a central government because they feared the federal government
would become tyrannical, and take away people’s rights. Therefore, even though the Constitution in the
first seven articles did not grant to the federal government any authority over
gun rights, along with the rest of the rights enumerated in the Bill of Rights,
those skeptical over the creation of a central government wanted an amendment
that clarified the federal government had no authority to infringe on the right
to keep and bear arms.
The States have Original
Authority, meaning that all powers belonged to the States prior to the
writing of the Constitution. The first
seven articles of the document did not give to the federal government the
authority to regulate firearms, therefore, any legislative power over gun
rights is a State power. The 2nd
Amendment simply confirms that. The
argument then becomes about the potential tyranny of the States. If the 2nd Amendment does not apply to the
States, what keeps the States from infringing on gun rights?
The State constitutions, and
the people, hold the responsibility of restraining the States from infringing
on the right to keep and bear arms. The
Founding Fathers were not concerned with a tyranny of the States because the
State governments are closer to the people, and therefore the people have fewer
legal and political obstacles when acting to ensure the State governments do
not infringe on individual rights.
Complacency, then, becomes our
greatest enemy.
With freedom comes
responsibility.
Understanding that the Framers
expected their posterity to be informed problem-solvers, while recognizing that
basic human nature would invite complacency and the rise of a tyrannical
government, it becomes clear why the Founding Fathers put so much importance on
gun rights.
In early American society the
need to be armed was necessary for a number of reasons, including, but not
limited to, protecting one’s property, facilitating a natural right of self-defense,
participating in law enforcement, enabling people to participate in an organized militia system, deterring a
tyrannical government, repelling invasion, suppressing insurrection, and
hunting.
The right to keep and bear
arms is not merely about protecting your home, or hunting, though those are
important, too. The whole point of the
2nd Amendment is to protect us against all enemies, foreign and domestic, which
could include a potentially oppressive central government.
Noah Webster in his “An Examination
of the Leading Principles of the Federal Constitution,” in 1787 articulated the
necessity for keeping and bearing arms clearly: “Before a standing
army can rule, the people must be disarmed; as they are in almost every kingdom
of 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 band of regular troops that
can be, on any pretence, raised in the United States."
Some will argue the 2nd Amendment
does not apply to our current society because the militia is a thing of the
past.
The National Guard now serves
as the organized militia envisioned by the Founding Fathers, but an unorganized
militia also exists.
Title 10 of the United States
Code provides for both "organized" and "unorganized"
civilian militias. While the organized militia is made up of members of
the National Guard and Naval Militia, the unorganized militia is
composed entirely of private individuals.
United
States Code: Title 10 – Armed Forces, Subtitle A – General Military Law
Chapter 13
– The Militia:
Sec. 311.
Militia: composition and classes
(a) The
militia of the United States consists of all able-bodied males at least 17
years of age and, except as provided in section 313 of title 32, under 45 years
of age who are, or who have made a declaration of intention to become, citizens
of the United States and of female citizens of the United States who are
members of the National Guard.
(b) The
classes of the militia are -
(1) the
organized militia, which consists of the National Guard and the Naval Militia;
and
(2) the
unorganized militia, which consists of the members of
the militia
who are not members of the National Guard or the Naval Militia.
Other than age, health, gender,
or citizenship, there are no additional provisions for exemption from
membership in the unorganized militia.
While it is doubtful that it will ever be called to duty, the United
States civilian militia does legally exist.
The Founding Fathers would have likely included in the definition of
unorganized militia, “All able-bodied citizens capable of fighting.”
McDonald v.
City of Chicago (2010)
challenged the City of Chicago’s ban on hand guns, bringing to the surface the
debate over whether or not the 2nd Amendment only applies to the federal government.
The 5-4 Decision of the McDonald
v. City of Chicago case by the U.S. Supreme Court holds the 2nd Amendment
protects the right to keep and bear arms in all cities and States. The U.S. Supreme Court concluded that
originally the 2nd Amendment applied only to the federal government, but it is
in the opinion of the court that the 14th Amendment incorporates the Bill of
Rights, therefore applying those amendments, and more specifically the 2nd
Amendment, to the States.
The decision by the Supreme
Court, in this case, makes all State laws on fire arms null and void. Applying the 2nd Amendment to the States
means the 2nd Amendment is supreme over any and all State laws on firearms, and
according to the 2nd Amendment, “the right to keep and bear arms shall not be
infringed.” If “shall not be infringed”
applies to both the federal government and the States governments, then all
persons are allowed to possess a firearm.
The words, “shall not be infringed” carries no exceptions.
The reason the 2nd Amendment
is absolute in its language is because it was intended to only apply to the
federal government. The federal
government shall not infringe on the right to keep and bear arms in any way, but
the States retain the authority to regulate guns as necessary based on the
needs and allowances of the local electorate.
The U.S. Constitution applies
to the federal government except where specifically noted otherwise.
In reference to McDonald v.
Chicago, I am uneasy anytime the federal government tells a city or state
what they have to do, even if on the surface it is for a good cause.
If we give the federal
government the right to tell cities they have to allow gun ownership, what
stops them from doing the opposite later?
This case created a precedent of allowing the federal government to
dictate to the States and cities what they have to do, and that kind of federal
intrusion constitutes great danger to State Sovereignty.
Breaking down the language
used in the 2nd Amendment assists in clarifying what the original intent was.
The 2nd Amendment begins, “A
well regulated Militia.” The
immediate understanding of that phrase by the average American in today’s
culture recognizes it as meaning, “A militia under the control of the
government,” or “regulated by government agencies,” or “managed by federal
law.”
All of the above definitions
are wrong.
As discussed regarding the
Commerce Clause in Article I, Section 8, the word “regulated” does not mean
“controlled or restricted by government.”
The definition used by the Framers, and the one that fits best with the
context of the period, and the principles of the Constitution, can be found in
the 1828 Webster Dictionary. Webster
defined regulated as: “To put in good order.” Some historians state that the word
“regulate” in the 18th Century meant “To make regular.” The word “restrict” was not used in the 1828
definition until the third and final definition of “regulated,” revealing that
today’s most common definition was the “least used” definition during the time
of the writing of the United States Constitution.
Since “regulate” did not mean
“to control and restrict,” but instead meant “to put in good order,” that means
a well regulated militia is one that is in good order.
The need to have a militia in
good order makes sense when one considers that during the Revolutionary War the
militia was not in good order. The
muskets were all different sizes, often the clothing of some members of the
militia was tattered, and many didn’t even have shoes.
To put the militia in good
order, Congress was required to create standards for the militia to
follow. The authority to Congress
regarding this power is revealed in Article I, Section 8, Clause 16, where the
Constitution says, “The Congress shall have Power. . . 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 Officers, and the Authority of
training the Militia according to the discipline prescribed by Congress.”
The next part of the 2nd
Amendment reveals that a well regulated militia is “necessary to the
security of a free State.”
The word State, in that instance, means “individual, autonomous, sovereign
State.” In other words, a well regulated
militia is necessary to the security of a free Massachusetts, a free
Pennsylvania, a free Virginia, a free New York, a free Ohio, a free California,
and so on.
“Necessary to the security
of a free State.” A militia is
necessary, not just recommended, to the security of a free State. Security against whom? A foreign invader? Isn’t that what the standing army was
supposed to be for? Why would States
need militias, capable of being called up by the governor of the State, for
their “security,” and to ensure that security is for them to remain a “free
State?”
Foreign enemies were a
concern, but not as much of a concern as a tyrannical central government. Thomas Jefferson so distrusted a central
government that he suggested there would be a bloody revolution every twenty
years.
“… can history produce an
instance of a rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20 years without
such a rebellion. The people can not be
all, and always, well informed. The part
which is wrong will be discontented in proportion to the importance of the
facts they misconceive. If they remain
quiet under such misconceptions it is a lethargy, the forerunner of death to
the public liberty. We have had 13
states independant 11 years. There has
been one rebellion. That comes to one
rebellion in a century and a half for each state. What country ever existed a century and a
half without a rebellion? And what
country can preserve it's liberties if their rulers are not warned from time to
time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts,
pardon and pacify them. What signify a
few lives lost in a century or two? The
tree of liberty must be refreshed from time to time with the blood of patriots
and tyrants. It is it's natural manure.”
-- Thomas Jefferson to William Stephens Smith, Paris, 13 Nov. 1787
The Declaration of
Independence also states that the people have the right to stand up against
their government should it become tyrannical.
In the second paragraph of the Declaration of Independence it reads:
“That to secure these
rights, Governments are instituted among Men, deriving their just powers from
the consent of the governed, --That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles
and organizing its powers in such form, as to them shall seem most likely to
effect their Safety and Happiness.”
The right to alter or abolish a tyrannical government
walks hand in hand with the right to keep and bear arms. How could it ever be logical that the right
to keep and bear arms could ever be influenced or restricted by the very
government that that right exists to protect the people against in the first
place?
Terms:
Arms - Weapons,
firearms; a gun that may be used for protection of property or as part of a
militia.
Collective
Right - Rights held by a group, rather than its members separately.
Declaration
of Independence - The unanimous formal Declaration of the thirteen
united States of America declaring their freedom from Great Britain, dated July
4, 1776.
Individual
Right - Rights held by individuals within a particular group.
Organized
Militia - A well trained militia that is in good order that operates under the
authority of Congress, able to be called into actual service by the executive
authority of a State, or by the Congress of the United States; National Guard,
Naval Militia, State Militias.
Original
Authority - Principal agent holding legal authority; initial
power to make or enforce laws; the root authority in government.
Regulated - To make
regular; to put in good order.
State
Sovereignty - The individual autonomy of the several states;
strong local government was considered the key to freedom; a limited government
is the essence of liberty.
Unorganized
Militia - Able-bodied citizens of the United States, or those who have made a
declaration of intention to become citizens of the United States, who are
members of the militia who are not members of the National Guard or the Naval
Militia.
Questions
for Discussion:
1. In your
opinion, what are the most important reasons for the right to bear arms?
2. If the
courts, or the federal government, were to redefine gun rights as being a
collective right, how would that affect our individual right to keep and bear
arms?
3. Is a militia
necessary in today’s society? Why?
4. Why did the
Founding Fathers see it as necessary to prohibit the federal government from
any authority to prohibit the right to keep and bear arms, but felt it
necessary to allow the States full authority over gun regulations?
5. In McDonald
v. Chicago the Supreme Court ruled that the 2nd Amendment applies to cities and
States. How does that open up the
opportunity for the federal government to further regulate firearms?
Resources:
10 USC §
311 - Militia: Composition and Classes, Cornell University
Law School: http://www.law.cornell.edu/uscode/text/10/311
McDonald v.
City of Chicago, United States Supreme Court:
http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
Noah
Webster, An Examination of the Leading Principles of the Federal
Constitution (Philadelphia
1787), The Federalist Papers: http://www.thefederalistpapers.org/founders/noah-webster/noah-webster-an-examination-of-the-leading-principles-of-the-federal-constitution-philadelphia-1787
The Tree of
Liberty Quotation, Monticello - TH: Jefferson Encyclopedia:
http://wiki.monticello.org/mediawiki/index.php/The_tree_of_liberty...(Quotation)
Washington,
D.C. v. Heller, Supreme Court of the United States Blog:
http://www.scotusblog.com/case-files/cases/dc-v-heller/
3rd
Amendment: Quartering
The Founding Fathers feared a
centralized government with a powerful military. One of the final straws that began the road
to the American Revolution was the Quartering Act of 1765 where the
colonists became required to house and feed the British troops they
despised. The Quartering Act enabled the
British Empire to exercise greater control over the populace. It was also known as one of the Intolerable
Acts.
The Quartering Act served as a
major reason for the writing of the 3rd Amendment, which reads: “No Soldier
shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.”
Tyrannical governmental
systems use unwarranted influence through military means. To guard against the potential for the
disastrous rise of misplaced power, the Framer’s concerns about standing
armies became evident in the 3rd Amendment.
To help the populace protect
themselves, and be able to enforce the 3rd Amendment, in case the federal
government violated the clause, the Founding Fathers also gave us the 2nd
Amendment: “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.”
The concept of a Militia that
is not a federal army is the realization that the United States will not be one
where there is a standing army that
can be used against its citizens.
Article I, Section 8, Clause 12 gives the Congress the power to raise
and support armies, but limits them to no more than two years funding.
When a military arm of a
tyrannical government can compel the citizenry to house the military machinery
of defense, a police state is present and liberty is at risk. Such was the reasoning behind the 3rd
Amendment.
Until the Revolutionary War, the American States had
no military, and the militias were populated by the colonists. The Constitution gave the U.S. Government the
authority to build a military for the defense of the union. A military establishment, in the minds of the
Founders, was a potentially dangerous thing.
The Founding Fathers desired to protect the union, but did not desire
that the American military become an authoritarian tool of a potentially
tyrannical federal government.
Terms:
Intolerable
Acts - A series of laws passed by the British Parliament against the
American Colonies in March of 1774. The
British Parliament referred to these laws as the Coercive Acts. The acts were primarily designed to punish
the colony of Massachusetts for defying British policies, and more
specifically, for the Boston Tea Party.
The Intolerable Acts caused outrage among the Americans, which led to
the calling of the First Continental Congress in September of 1774. Among the actions taken by this united
Congress was a boycott of British goods.
The Intolerable Acts were called “impolitic, unjust, and cruel,” and
included the Boston Port Act, the Massachusetts Government Act, the Quartering
Act, the Quebec Act, and the Administration of Justice Act.
Police
State - A system where the government exercises rigid and repressive
controls through strong law enforcement or military control.
Quartering
Act of 1765 - Act passed by the British Parliament in 1765 that
stated that British troops in America would be housed in barracks and in public
houses unless and until the number of troops overwhelmed the facilities, at
which time, the troops could be housed in private commercial property, such as
inns and stable, and in uninhabited homes and barns. The quartering would be without compensation
and, in fact, owners would be required to provide soldiers with certain
necessities such as food, liquor, salt, and bedding, also without compensation.
Standing
Army - A professional permanent army composed of full-time career soldiers who
are not disbanded during times of peace.
Questions
for Discussion:
1. Why did the
British pass the Quartering Act of 1765?
2. How did the
Americans respond to the Intolerable Acts?
3. Why did the
Founding Fathers have concerns regarding standing armies?
4. How does
militias protect against the formation of a police state?
Resources:
Joseph
Andrews, A Guide for Learning and Teaching
The Declaration of
Independence
and The U.S. Constitution - Learning from the Original Texts Using Classical
Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution
(2010).
Madison’s
Notes Constitutional Convention, Avalon Project, Yale
University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip B.
Kurland and Ralph Lerner, The Founder’s
Constitution –
Volume
Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
Quartering
Act, U.S. Constitution Online:
http://www.usconstitution.net/quarteringact.html
The
Declaration of Rights and Grievances, U.S. Constitution Online:
http://www.usconstitution.net/intol.html
Copyright
2015 Douglas V. Gibbs
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