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.