Why the Supreme Court Believes the Second Amendment Exists

Living in the Nation's Capitol, I meet many interesting people  Some of these people are actually involved in making the laws that govern us.  Keep in mind that law can be made by all three branches of government, whether the law is a bill passed by Congress and signed by the President, a regulation enacted by a regulatory agency, or a legal opinion issued by a Court.

I had the pleasure of discussing the Second Amendment with one of these people recently and was very surprised at what I heard.  This person was under the impression that the right of self-defense and the right to hunt were the purposes for which the Second Amendment was included in the Bill of Rights.  The defense against tyranny was only a minor reason stated by a few of the founding fathers.  He said that the historical context was that in England, since only the wealthy were permitted to hunt, only the wealthy needed firearms.  Therefore, there was a ban on firearms to the people.  Keep in mind that England was a monarchy at the time.  You could be killed if you were caught poaching any game animal from anywhere, because all game animals were property of the Crown.  This also left most people defenseless to the criminals who did not care that having a firearm was against the law.  So, the government of England at the time was not a government of the people and the people had no way to overthrow the government that denied the people the tools to feed and defend themselves.

I hope you see the irony there.  The Founding Fathers were not concerned about whether or not the people should have the right to own firearms to hunt or the right to own firearms for self-defense.  The Founding Fathers were concerned about a government that could be so oppressive that it denied people the basic rights granted to them under natural law and the people could do nothing about it.  Natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature.  In other words, by virtue of just being a human, you have certain rights, such as the right not to be murdered or the right of survival.  Our courts even recognize this in that certain acts of stealing or trespassing are excusable if done solely for the purpose of survival even if the written law does not provide such an excuse.

So I decided to go back and read the U.S. Supreme Court opinion in Heller to see if the Court addressed this issue.  This is what the Court wrote in the majority opinion:

That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The Supreme Court also stated that during the 1788 Constitutional ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.  Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.  The Supreme Court wrote “It was understood across the political spectrum that the right [to keep and bear arms] helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”

The Supreme Court also stated that it is entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The Supreme Court continued “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right was codified the Bill of Rights.”

In other words, although the Founding Fathers may have viewed having a firearm for self-defense and hunting as more important, the reason the right was codified is the Bill of Rights was for the People to have the power to overthrow the Government should the Government ever become oppressive.  To date, this has been mostly true.  If you have read my other posts, you know I believe that the Second Amendment is a dormant clause.  The use of firearms for self-defense and for hunting is something the People do every day.  The need to overthrow the Government because the constitutional order has broken down has yet to happen.

Is the Second Amendment’s existence the reason the constitutional order has not broken down?  We will find out soon enough if the Second Amendment is weakened.  I, for one, do not want to find out.  Once the People give up their firearms, how do they get them back?  They don’t.  That is why a strong Second Amendment is the 1^st Line of Defense against tyranny.  Maintain the line.

Advice on Protecting Myself from the Vice President

I was surfing YouTube recently and ran across a clip of Vice President Joe Biden being asked about gun control.  He went off on a tangent and started preaching that a shotgun is more lethal than an AR style rifle, even in the hands of someone that knows how to use the rifle.  Then I ran across another video where Mr. Biden continued on his shotgun theme by stating that all you need is a double barrel shotgun for protection.  He said that all you need to do is run outside and fire 2 shots into the air.  In his mind, that would scare away anyone meaning to do me harm.  Setting aside how bad (and potentially illegal and dangerous) the advice is, keep in mind that these comments came in response to gun control discussions.

So, here is the fictitious but not unheard of scenario.  In writing my blog, I violate some newly passed law prohibiting me from criticizing the policies of the government.  A group of police, secret service, FBI, “government representatives,” or whatever you want to call them come to my house.  They break down the door without a warrant.  I run outside with my double barrel shotgun and fire 2 shots into the air.  If I am lucky enough to still be alive, the government authorities arrest me without a warrant and take my computer.  I am locked up for an indefinite period of time, not given any contact with the outside world, never indicted or having my case heard before a grand jury, and do not receive a trial for years.  After a trial, without a jury, where I have to prove myself to be innocent, I am sentenced to death for my crime.

I violated a law that is unconstitutional under the 1st Amendment.  The government representatives entered my home in violation of the 4th Amendment.  They seized me and my property in violation of the 4th Amendment.  I am imprisoned and tried in violation of the 5th and 6th Amendments.  I am sentenced to death and die by firing squad in violation of the 8th Amendment.  (I thought the firing squad was kind of ironic given that they do not use double barrel shotguns for this.)

Interestingly enough, the 20 or so body-armor-clad government representatives that came to my home brought with them semi-automatic handguns with magazine capacities in excess of 10 rounds, semi-automatic rifles with magazine capacities in excess of 10 rounds, tear gas guns, flash grenades, and an armored vehicle.  One guy did have a shotgun mounted to his AR (which stands for ArmaLite by the way, not Assault Rifle) style rifle so that they could breach my front door.

According to Vice President Joe Biden, a double-barrel shotgun will stop these intruders.  But more to the point, if all you need for self-defense is a double-barrel shotgun, why do our police departments not use them?  They have been around for over 150 years.  Clearly, they have been the most successful self-defense firearm in history as every police department I know of uses them (sorry, I am being facetious).  Remember, the police only have the ability to use lethal force in self-defense.  Same as you.

The problem with getting into the argument about what is the best self-defense firearm is that the conversation generally turns to common street criminals breaking into your home.  I do not keep a firearm in my home for that purpose.  The 2nd Amendment does not protect my right to keep a firearm in my home for self-defense from common street criminals.  The 2nd Amendment does protect my right to keep a firearm in my home to prevent the scenario I outlined above from happening; namely, the scenario where the government has become oppressive and government officials are rounding up dissidents and imprisoning or executing them.

So, the question I would ask Vice President Joe Biden:  When 20 or so armor-clad government officials come to execute me in my home for something I have posted on the internet, is a double-barrel shotgun my best choice for defending my liberties and defending the U.S. Constitution?  Or more to the point, after consulting with his military and law enforcement advisors who want to come to my home and hall me away, would they prefer I had a double-barrel shotgun or a semi-automatic, center-fire rifle with a 30-round magazine.  I would venture a guess that they would prefer I had a double-barrel shotgun.  I think I would go with the one they would prefer I did not own.

Remember, the 2nd Amendment serves only 1 purpose.  It is the 1st Line of Defense should the U.S. Government ever attempt to cease being a government operating in accordance with the U.S. Constitution.  Instead of trying to take semi-automatic center-fire rifles away from the People, the government should be issuing a rifle to every home and mandating training on how to use the firearms.

Checks & Balances and the 2nd Amendment

I was recently asked an interesting question.  I had heard the question before in the media, so it was no surprise that someone was quoting it back to me.  The question was: “Do you think our Founding Fathers envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment?”

It is an interesting question because the logical answer is: Of course our Founding Fathers did not envision AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment.  Of course, it is logical to assume that the Founding Fathers also did not envision horseless carriages (automobiles), microwave ovens, space travel, nuclear energy, computers, or any of the other modern conveniences that we take for granted today.

But the real implication of the question is that the 2^nd Amendment is frozen in time and that the People only have the right to “keep and bear” the arms that were in existence on the day the 2^nd Amendment was drafted, namely muskets.  So, the real answer to the question and the implication is: Does it really matter whether the Founding Fathers envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment?

Once again, you have to look at the purpose for which the 2^nd Amendment was included in the Bill of Rights of the U.S. Constitution.  The purpose of the 2^nd Amendment was to permit the People to overthrow the government should the government ever deny the rights to the People that are contained in the remainder of the U.S. Constitution.  In other words, the 2^nd Amendment provides the People a check and balance on the power of government.  The People may never need to use the power retained by them in the 2^nd Amendment but the mere existence of the 2^nd Amendment is what prevents the government from denying the rights guaranteed by the U.S. Constitution to the People.

With that in mind, it would appear that the Founding Fathers were very shrewd in their drafting of the Bill of Rights.  Not only did they not envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment, but they also understood that they could not envision the future.  For that reason, they did not state that the right to keep and bear arms was limited to muskets or whatever other weapon was available to the government on the date of the drafting of the 2^nd Amendment.  In order for the 2^nd Amendment to work properly, the 2^nd Amendment had to be drafted in a more flexible manner to retain its usefulness into the future.

When you combine this flexibility with the intent of the 2^nd Amendment, the only logical conclusion you can draw is that the Founding Fathers intended the People to have access to the same technology that is available to the government.  In today’s society, that means that if the government has the technology to build and arm government representatives with AR-15 style rifles and 30 round magazines, the only way to ensure that the check and balance of the 2^nd Amendment remains intact is to permit the People to own the same technology, namely AR-15 style rifles and 30 round magazines.

The unfortunate reality is that some of our government representatives want to take away a power that was expressly retained by the People, thus removing one of the most important checks and balances of our U.S. Constitution.  By removing the right of the People to possess the same technology that is available to the government, the government becomes more powerful than the People.  We cannot let that happen.  We must maintain the line.

Universal Background Check Are Anti-U.S. Constitution

I was watching a morning talk show and the topic of Gun Control came up.  Interestingly, only the subject of “universal” background checks was discussed.  Note my quotation marks for the word “universal” because it seems to be a new catch phrase with some positive connotation.  Please do not be fooled.  This is just “new” and “improved” packaging on an age old attack on your rights under the U.S. Constitution.  As with all gun control legislation, this is not an attack on the 2^ndAmendment, but an attack on every other provision of the U.S. Constitution.

Starting with the intent of the 2^nd Amendment as our guide, let’s analyze this.  The 2^nd Amendment of the Bill of Rights is a dormant provision.  In other words, as long as everything is going smoothly in the United States, the 2^nd Amendment has no real purpose.  Anyone that has ever financed a home or new car knows what I am talking about.  In every home or new car financing transaction there is a contract the purchaser signs.  That contract, in the first page or two, states the purchaser’s obligations.  Usually, it says something as simple as, “Purchaser agrees to make monthly payments of $xxx for yyy number of months until the debt is paid off.”  So what do the other 10 or 20 or 30 pages of the document do?  Those pages do nothing as long as the simple 1 line obligation of the purchaser is adhered to.  They are dormant until the time when the purchaser no longer is complying with his or her obligations.  Then, and only then, does a bank need the clause that allows them to foreclose on the house or repossess the car.

The U.S. Constitution operates much the same way.  As long as the Government complies with its obligations under the U.S. Constitution and the 26 other Amendments, the 2^nd Amendment remains dormant.  Do not confuse dormancy with obsolescence.  No bank would finance a home unless there was some means by which the bank could guaranty it could get its money back.  In good financial times, when foreclosures were at an all time low, was there any discussion to prohibit banks from foreclosing on property?  Wishful thinking.

Keep in mind that the People are the Bank in the above scenario.  The People had something the Government wanted, namely the People had all the rights.  Through the U.S. Constitution, the People expressly granted some rights to the Government, expressly retained enumerated rights for themselves or for the States, and provided wonderful provisions on how to interpret the Constituion in the 9^th Amendment and 10^th Amendment.  Adding to that is the 14^th Amendment.  In short, these provisions combine to provide that powers not delegated to the Government by the Constitution, even if not expressly reserved by the People to the People, are still not possessed by the Government.  In other words, for purposes of our conversation, the People kept some guaranties that the Government would honor its obligations.

So what does this have to do with “universal” background checks.  The media and some in the Government that are in favor of universal background checks would have us believe that sales of firearms between private individuals, especially at gun shows, happens in such a tremendous volume that this is a threat to public safety.  So much so, that outlawing these private sales is warranted regardless of its effect on our Constitutional Rights.

On the gun show issue alone, they are lying to us; lying to the People.  The Gun Control Act of 1968 (GCA) states the following:

“The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.”

The very first operative provision of the GCA  provides:

“It shall be unlawful … for any person … except a licensed dealer, to engage in the business of … dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce”

According to the GCA, anyone in the business of dealing in firearms needs to be licensed.  I would conservatively estimate that 95% of the firearms sold at a gun show are sold by Federally licensed firearms dealers (FFLs).  The actual number is probably higher.  If an FFL disposes of a firearm in any manner other than to another FFL, a background check must be done.  So that leaves maybe 5% of firearms sold at gun shows being sold by non-FFLs.  So who are these other 5%?  They are either unlicensed people in the business of dealing in firearms in violation of the GCA or they are private individuals not in the business of dealing in firearms.

The GCA already provides for penalties for unlicensed persons dealing in firearms.  Now, the Government wants to regulate private individuals not in the business of dealing in firearms.  This is such small number of people with such a small number of firearms, why is it so important to regulate them?

The same principles of the GCA apply to people outside of the gun show arena.  If someone is in the business of dealing in firearms, they must be an FFL or they are committing a crime.  Again, private sales of firearms between individuals outside of gun show is such a small number, why is it so important to regulate them?

The way the Government wants to regulate this small number of people is by making these people conduct background checks before they transfer a firearm.  So what happens if no background check is done?  The people are criminals.  How does the Government purport to expose this criminal activity?  There has been very little discussion on this topic because the manner would not be very pleasing to the bulk of the People.

In order to enforce universal background checks, the Government would first need an additional law that says it is a crime not to report a lost or stolen firearm.  (This has already been proposed under the guise of helping police officers.  How it accomplishes that is a mystery but it sounds good.)  This is needed so that if you dispose of the firearm without a background check and did not report it lost or stolen, then you have committed one of two possible crimes:  failing to do a background check or failing to report a lost or stolen firearm.  But this only works if the firearm ends up in the hands of the Government and they are able to trace the firearm back to the person that transferred it without a background check.  So what about all those other transfers where the firearm does not end up in the hands of the Government?

The only way to enforce a universal background check system is to have gun registration for all firearms and then the right of the government to enter your home to verify that the firearms you possess are in fact lawfully registered.  Without gun registration, there is no reliable way for the Government to know how a firearm came to be possessed by a particular person.

Once firearms are registered, the 2^nd Amendment is no longer dormant.  It becomes obsolete.  Not because it is no longer needed, but because the effectiveness of the 2^nd Amendment is so impaired that it will no longer work for its intended purpose.  Instead of having to go door to door to search for firearms, the Government merely needs to issue a statement that everyone with a registered firearm needs to turn the firearm into the Government or go to jail.  Then the Government only needs to round up the People that did not turn in their firearms and imprison them.

Imagine if for some reason or another, Banks are told that they could not foreclose on a home and they no longer have any guaranty of payment when the homeowner has stopped paying the mortgage.  How many homeowners would continue to make payments of their mortgages?

The Government will act the same way.  If the Government finds a way to eliminate the consequences of infringing on free speech rights, having secret backroom criminal trials, or pronouncing people guilty until proven innocent, the Government will adopt laws to make it so.  It is only because of the dormant nature of the 2^nd Amendment and the harsh consequences of the failure of the Government to honor its obligations under the U.S. Constitution that the 2^nd Amendment has never had to be used for its intended purpose.

The People must maintain the line and not let the 2^nd Amendment be viewed as obsolete.   As goes the 2^nd Amendment, so go the rest of our Freedoms.

Maintain the Line!!!

In creating this Blog, I did a Google search for references to the U.S. Constitution so that I could provide my readers a link to the actual text.  You will find those links to the right. So many of us think we know what the Constitution and the Bill of Rights provide, but so few people have actually read the language.  In that search, I found sites that purported to analyze the Constitution.  And one site in particular analyzed the 2^nd Amendment in relation to current societal views.  The author of that site states:

"[R]ealizing that firearms are a part of our history and culture and are used by many for both personal defense and sport, this site has proposed a new 2nd Amendment — an amendment to replace the 2nd Amendment to the Constitution."

The proposed amendment reads in part as follows:

"The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed."

The interesting thing that is missing from this proposed amendment is the right to keep and bear arms for the protection of the rights granted to the People under the Constitution.  Our history includes that use of firearms and also includes instances where unarmed Americans were stripped of their rights by the Government.  Quite frankly, it is nice to have a firearm for hunting or for sport but I do not "need" firearms for those purposes.  The purpose for which I "need" firearms is the protection of the Freedoms granted to me by the Constituion.  Wow, and that happens to be the purpose for which the 2^nd Amendment was included in the Constitution in the first place.  Go figure.

And please do not think all firearms are the same.  Firearms that are good for hunting or sport are not always the best suited in battle.  Also, limiting the thinking to a firearm used for self-defense introduces the possibility that a firearm can be prohibited because its true usefulness is offense and not defense.  If you ask some politicians today, they see handguns that hold only seven rounds of ammunition as all that is needed for self-defense.  But would we send our soldiers or police officers into battle with such firearms?  We would have hell to pay.

Finally, the author on that website goes on to say:

"This proposed amendment is a truer representation of how our society views our freedom to bear arms.”

If you poll the people and you ask them the following: under current conditions, where we have the peaceful transition of power after a national election and our current laws grant freedom to the press and a right to a speedy and fair trial, what is your view on our freedom to bear arms?  Most will probably agree with the author.  The people polled were most likely born in the United States and have come to take the Freedoms we have here for granted.  It is because of the 2^nd Amendment that the people currently have these Freedoms, not in spite of the 2^nd Amendment.  People have been lulled into a sense of complacency.  Probably even a sense of moral superiority in the belief that the their Freedoms can never be taken away.  History has repeatedly proved these people wrong.

I suggest that if you poll the people, and press them on the question of how far they would go to defend their right to vote if eliminated by the Government or how far they would go to defend their families from Government incarceration for prohibiting their right to practice their religion, society (the People) would be willing to take up arms.  Any person that believes that society is ready to give up free speech, voting rights, protection from having land taken by the government, or the right to a trial by a jury of their peers is not asking the right questions.

But, if restrictions are permitted to be put in place during the time of complacency as suggested in the proposed amendment, what arms will the People actually have available to them when the Government starts to trample on the Bill of Rights; arms that only have usefulness for hunting, sport, collecting or self-defense.  The technology and arms available to the government would have progressed far beyond those of the People.  Picture farmers with pitch forks fighting trained soldiers with Gatling guns.  Not a pretty picture is it?

Keep in mind that the Government needs to weaken the 2^nd Amendment before it can strip away the other rights provided by the U.S. Constitution.  That is why the 2^nd Amendment is the 1st Line of Defense.  We cannot let that line fall.  As goes the 2^nd Amendment, so go the rest of our Freedoms.

Are You Pro-Constitution?

I have been in the firearms industry since 2001, when I opened a small hunting and fly-fishing shop in Old Town Alexandria, VA named The Trophy Room.  It has been a few years since I closed my retail store, but I have stayed connected with the outdoor industry since then.  The story of The Trophy Room has been retold countless times.  Read about it here and here.

Having been formally trained and educated as an attorney, it pains me to see the recent attempts to trample on the U.S. Constitution.  Now most would interpret that as another pro-gun person discussing the 2^nd Amendment.  However, that is not what I mean.  What I see is a blatant attack on every other provision of the Constitution from the right to free speech and freedom of religion contained in the 1^st Amendment to the right to be free from unreasonable searches and seizures contained in the 4^th Amendment, to the right to a speedy trial contained in the 6^th Amendment.  I could go on and on, but make no mistake, the first line of defense of the U.S. Constitution is under attack.

If you were a foreign power and you wanted to conquer the United States, the first thing you would do is strike at the U.S. military.  Why?  Because the U.S. military is charged with protecting the United States.  It is the first and the most powerful line of defense for the United States.  Without the U.S. military, the country would be virtually defenseless.

In a similar manner, the 2^nd Amendment to the U.S. Constitution is charged with protecting all the other provisions of the Constitution.  Not from a foreign conqueror but from our own U.S. Government.  Without the 2^nd Amendment, the rest of the provisions in the Constitution are virtually defenseless.

It is pretty widely agreed that the 2^nd Amendment of the Constitution was included by our Founding Fathers for at least a couple of purposes.  One very important purpose was to allow the overthrow of the government should the government ever become oppressive.  How that would be accomplished is what is really being debated, namely whether it would be state militias or the actual people banding together.  What does that mean?  It means that when the government goes too far in taking away our free speech rights or invades our homes for no reason or locks us up without the right to a speedy and fair trial, or infringes on our right to vote, the people, most likely by banding together, have the ability to take back the country from the oppressive few.

Do I believe this will ever happen on a National scale?  Well, it has happened on a local scale as recently as 2005.  However, my individual opinion as to whether the people will ever need to overthrow the government and, by necessity, my opinion on the current need for the 2^nd Amendment does not matter.  What matters is whether the people, as a whole, believe the 2^nd Amendment protections are still needed.

And luckily for the people, our Founding Fathers were very intelligent individuals.  Because of their keen sense, they were smart enough to include a provision in the U.S. Constitution that provides the procedures for amending the Constitution.  So, the current battles in Congress over whether to ban firearms or firearm accessories comes down to whether or not the people of the United States, and their elected representatives, are pro-U.S. Constitution or anti-U.S. Constitution?  Do the people believe in free speech, freedom of religion, the right to vote, or the right to be free from discrimination or do they believe that the U.S. Constitution can be amended to remove these rights by the will of a small group of politicians?

That is what this Blog is about.