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
1st Line of Defense against tyranny.
Maintain the line.
