A Right to Bear Arms

Illustration of Bliss v. Commonwealth versus R...

Illustration of Bliss v. Commonwealth versus Right to bear arms versus Second Amendment (Photo credit: Wikipedia)

January 12, 2013

Well, not owning any arms, nor being likely to, I will leave the ongoing “discussions” on the subject of one’s individual right to keep and bear arms and the government’s right to limit (though not do away with) those rights to those who have a dog in that fight.

Though I must say, having read through the Constitution and its twenty-seven amendments (numerous times) and having read some of the various court decisions and scholarly discussions surrounding the second amendment, there do seem to be questions about the “well regulated Militia” part.

The Supreme Court has regularly acknowledged an individual right to keep and bear arms for self defense and hunting, as well as a government interest in limiting the scope of that right in the interest of public safety, saying, in effect, the right is not absolute.

As to the well regulated Militia part of the second amendment, there seem to be three separate strands to the arguments – all of them of interest to the various parts of the doomer community.

The first strand has to do with the well established recognition, in Common Law, that individuals had a right to defend themselves and a need to hunt for food.  Therefore, the “right to keep and bear arms” for those reasons was so well established, they needed not be mentioned in the Constitutional right to bear arms and, therefore, that right refers back to the clause about “A well regulated Militia, being necessary to the security of a free State”.

As both a citizen and a doomer, I would probably not quibble with any of that.

The other two strands to the arguments have to do with what the term, “well regulated Militia,” refers to.  One strand argues that it refers only to the Militia that Congress was empowered to “provide for organizing, arming, and discipling … and for governing such part of them as may be employed in the service of the United States …” by Article I, Section 8 of the Constitution.  And indeed, as far as I can find, that is the only Militia referred to in the Constitution.  Part of this argument is that this Militia would serve as a stand-in for a “standing army” which the Founders abhorred and which they limited funds for to two-year increments in the Constitution, in an apparent attempt to limit the power of Congress to “raise and support armies”.  (And we all know how well that has worked out.)

The second of these two strands (and the one I would quibble with if I were prone to quibble) is based on the extra-Constitutional writings of the various Founding Fathers.  This strand says that, because of their expressed fear of standing armies and of governments’ penchant for using them to oppress the people, the Founding Fathers believed the right of the people to keep and bear arms was both a right and a duty.  And, in fact, they envisioned two Militias.  The first, smaller one, drawn from the pool of the entire population of arms-bearing age was to make up the formal Militia delineated in the Constitution.  The second, an “informal” Militia, made up of all that population of arms-bearing age, could, if necessary, be called on to “do their duty” and throw off the chains of a tyrannical government that had gotten too uppity.  This seems to be the strand a lot of doomers accept and the one I would quibble with – if I were going to spend time quibbling.

And I would quibble with it for the following reasons:

1) The (mostly) wealthy, white landowners and businessmen who fomented the rebellion against England set up a government that, if you really read the Constitution, promoted their interests and pretty much kept the election and running of that government in their hands;

2) Prevented the funding of a standing army for more than two years without a vote, to reduce the chance of them turning on the government;

3) Empowered Congress to provide for organizing, arming and disciplining a formal Militia specifically tasked with “executing the laws of the Union, suppressing insurrections (against the government) and repelling invasions;

4) They only added a Bill of Rights because they couldn’t get the people to ratify the Constitution without it;

5) They gave the people only three basic ways to “change” government (and none of them included rebellion against it) – freedom of speech, freedom of peaceable assembly and freedom to petition the government for redress of grievances.

So why would they want to spread the notion of an “informal” militia of armed citizens to overthrow the government if the people believed it necessary?

Even the Supreme Court, in its limited decisions, seems careful to say that your right to bear arms is for self-defense and hunting.  I can’t find any of their decisions that say it’s for rebelling against the government.

In our recent wars, the Militia of the Constitution (the National Guard) has been used, alongside the standing, all volunteer military and a host of mercenary “soldiers” to support the military and fight our overseas wars.  All, to a man, have sworn an oath to uphold the Constitution.  My guess is (and yes, it’s just a guess) if the “informal” militia suddenly decided it was time to take on the declining Empire, most of the military, the mercenaries and a good part of the formal Militia would take their oath to uphold the Constitution seriously and secure what they see as a Free State by following orders to suppress the insurrection.

Of course, I may be wrong.  And if you all feel honor bound to exercise your right to keep and bear arms by rebellion against the government – even one as flabby and flummoxed as that of our declining Empire – I guess you can give it a try.  You may have a god-given right to do so written somewhere, but I will say, I don’t see that you have a Constitutional right to do it.  The Constitution seems pretty clear on that.

And that’s about all the non-quibbling I can muster for one day.

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18 Responses to A Right to Bear Arms

  1. Joey says:

    The Supreme Court has ruled that people have the right to guns to defend themselves. In the 20th Century, governments killed more of their own citizens (about 270,000,000) than all the soldier deaths in wars during that time). Stalin killed 20,000,000 (the USSR continued up to about 60-80 million or so), Cambodia kill 2-3 million, Hitler killed million of his own citizens, Mao is responsible for something like 60 million. All these were accomplished after guns were seized from their citizens. So, any normal, rational citizen should thus assume that “self defense” must extend naturally to defend oneself against ones own government, when that government begins to threaten ones life (especially in defiance of the Constitution which grants the government its limited set of duties and powers). Targeted drone strikes against American citizens, indefinite detention without charges/trials/lawyers/bail, re-implementation of slavery (based on the absolute crushing debt… my unborn grandchildren will be paying for today’s free cell phones), starting illegal wars without a declaration from Congress in Libya (soon to include Syria, and some African Nations, and Pakistan), annihilation of the 9th and 10th amendments by starting a war that killed 650,000 troops when some states tried to use them, failure of Congress to Coin money (and instead, subject all the elderly to death-through-starvation due to the Federal Reserve multiplying the money supply by 15 times in the past few years with resulting inflation just waiting on the money velocity to kick in while simultaneously not paying doctors what they billed under Medicare, and telling hospitals that if they admit someone who happened to be in the hospital in the previous month “You won’t be paid”) are all pretty life threatening. DHS buying 1.6 billion rounds of jacketed hollow-point ammunition (and continuing to add to this total) that is illegal to use against foreign armies whose only purpose could be shooting Americans and maybe drug smugglers and maybe terrorists (that is 28 rounds for every person who voted for Romney, a full down-loaded high-capacity magazine depending upon the weapon) is most concerning. Ironically, any rebellion-speak I have ever read revolves around restoring the Republic back to using the Constitution as the governing document (except the audience chants coming from political campaign stops, news interviews involving the current administration, and well funded and trademarked “Occupy ____” rallies).

    • theozarker says:

      Hi Joey, welcome to the blog. We live in an Empire (an Empire in decline, at that) and you will get no argument from me that the government of that Empire in all three branches is behaving in a most unconstitutional manner toward its own citizens and others. My only argument is that those citizens using “any rebellion-speak I have ever read revolves around restoring the Republic back to using the Constitution as the governing document” as you put it, have no right granted them by the Constitution to restore the government “back to using the Constitution as the governing document” by armed rebellion. Those rich white guys who set up the government to protect mostly their richness (then and now) didn’t include that method of addressing our grievances in the Constitution. So, while at least some citizens may think their right to self defense includes armed rebellion against the government, I just don’t see it as “Constitutional” and I’m pretty sure the government of the Empire (including the Supreme Court) doesn’t either and will pretty much feel justified in squashing anyone who tries it like a bug (based on their stated Constitutional duty to maintain the security of the free State by suppressing insurrections). Just my opinion, but there you go.

      • Joey says:

        I never said ‘armed rebellion’ was a right granted by the Constitution (pretty sure there aren’t any), I just mentioned the irony being that the only purpose of them wanting a rebellion was so that government would actually follow the Constitution, which is pretty much what they are supposed to do in the first place. Of course, the Constitution does not define all of our rights (which is blatantly obvious from the 9th and 10th amendments), and it took me until Amendment 7 before I found where the Constitution potentially grants a right ….Most of the amendments just tell the government that they stomp on the right that the people have naturally. Plus, if any law is unconstitutional it isn’t a law by definition, and even the Supreme Court saying their opinion, cannot convert it to being a law. The Supreme Court does not have the right to evaluate whether a law Constitutional or not (actually, citizens being allowed to have armed uprisings is at least supported by the 9th/10th amendments), that power or duty is not granted to them anywhere in the document.

      • theozarker says:

        Hi Joey, sorry if I misunderstood what you were saying about armed rebellion. I do disagree with you about armed rebellion maybe being one of the rights not delineated in the Constitution and therefore possibly granted under Amendments 9 and 10, since in Article III, section 3, treason against the United States is defined as “… levying war against them [the United States] …” and, as I said in the blog post, one of the three things the Militia was tasked with in the Constitution was to suppress insurrections. I also disagree with what you said about the Supreme Court. Article III, which sets up the judicial system, give that system power extending “to all cases, in law and equity, under this Constitution, the laws of the United States, and treaties made …” with the Supreme Court having “appellate jurisdiction as to law and fact …” (being the final court of appeal on the constitutionality of law and fact). At least, that’s what we were taught that meant in school. Of course state or federal legislators can rewrite a law that has been found unconstitutional by the(ir) Supreme Court(s) to try again. But the Supreme Court does have appellate jurisdiction as to law and fact according to the Constitution. So I do think the Supreme Court would have final appellate jurisdiction if the government decided to bring a person or group up on charges of treason for warring against the United States, armed rebellion or insurrection just as they do on charges of treason for adhering to their enemies, giving aid and comfort (the other part of the Constitutional definition of treason) as we have seen them do on parts of our “war on terrorism”.

        I’m certainly not a Constitutional scholar, but that is my understanding of it. If any of my readers are such, I’d appreciate their take on it.

  2. graveday says:

    I’m with you Linda, otherwise we are for sure just another banana republic.
    I’ll bare arms and show you my guns any day if you ask nicely, though they’re not what they used to be.

  3. Nadia says:

    Love your “guns” comment, Graveday! As an early era female bodybuilder, I had some guns and a ditch too for a time back then!

    As for weapons, I have changed my views over time and now I feel that you have to have a means of defending yourself, period. Whatever means that is …. know what you are doing and be willing to go all the way… as my husband would say….. no second chances. I married a biker in my late forties and moved from a far left to a far right and now have centered about right in the middle with some extreme views on both ends and a lot of “whatever makes most sense”. I no longer have the optimism I had when younger and don’t understand much of the “logic” in what is happening here and around the world now so if that makes me a Doomer, I guess that is what I have become. Much of everything seems to be falling to the lowest common denominator – and, sadly, mostly older generations like my parents and my boomer groups seem to have a sense of this malaise. I stay positive only because I’m happy in my marriage as well as where I live and have good relationships with my family and friends.

  4. graveday says:

    Nadia, did you ever see the movie ‘Pumping Iron, the Women’? I loved it.

  5. Nadia says:

    I did. It was a very major time/change in my life. Changed my life in all ways. As to topic, this change also created the confidence in me to feel very strong about my person.

  6. graveday says:

    Cool. Personal body sculpture. It gets a lot harder to do with age, but Jack LaLanne proved it was possible. I just need to be strong enough to work a garden and lift a full carboy, heh.

  7. Joey says:

    So, then it boils down to, regardless of whether the Constitution says you can defend yourself (especially since the government has argued in court that they don’t have to respond to redressed grievences), is “Do you get on the train car?” Do you let yourself be disarmed so that you are left with weapons that you can’t possibly resist government employees coming to put you on the train car? The Russians were armed under the Czar, the Communists “protected the childern” and then killed 80,000,000 citizens …. The other day, a gentlement told a customer that he was ‘irritated at the election results’ …. and that sentence brought 150 armed agents down upon his place of business, with no other wrong doing. A government with no need to fear its population, has no fear. And no respect for either the population or the rule of law.

    • theozarker says:

      Joey, what I’m saying is that the second amendment right to bear arms refers back to the well regulated Militia that was necessary for the security of a free State. The power to provide for organizing, funding and regulating that Militia was given to Congress in Article I, section 8 of the Constitution, as are the three things the Militia was tasked with – upholding the laws of the United States, suppressing insurrections and repelling foreign invasions. That is the only right to bear arms that the Constitution gives you. Keeping arms for self defense and hunting were natural rights recognized in Common Law (and upheld by our courts), but they were not specifically enumerated in the Constitution.

      As to what choice you have if the government sends the military to put you on that train, I would say only that you would certainly have a natural right to armed resistance, but nowhere in the Constitution or its Amendments do you have a CONSTITUTIONAL right to resist by taking up arms against the government. No government in its right mind would give its people the constitutional right to overthrow it any time enough people decided they didn’t like what the government was doing. They’d be so busy fighting their own citizens all the time, they wouldn’t be able to get any governing done. 😀

      Even in the Declaration of Independence they took their “right” to throw off England’s shackles and dissolve the political bonds between them and us “from Nature and Nature’s God”, not from the British Constitution (or its equivalent).

  8. LIttle Joe says:

    I will use English grammar to state a common (,) in a sentence starts a new sentence and can stand alone in meaning thus a well regulated Militia could have not been formed without a man carrying his personal firearm to battle.

    Also We The People always mean a personal right granted to individuals like voting etc… Also the Construction of The Constitution has been taken apart and rebuilt on the manner of what real money is and this has allowed the system to corrupt and steal the ability for We the People to have what the preamble says! See Below and Ron Paul was/is right about of lot of things our corrupt governments!( International Bankers)

    LJ

    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

    • theozarker says:

      I think part of the problem is that the Constitution gives the government power to not only write the laws (legislative branch), but interpret the constitutionality of the laws written (the judicial branch). In a representative democracy, where the people truly choose the representatives and hold them to account, that may work out well. But as we veered into Empire, that process has been thoroughly corrupted by money and power (and our own failure to hold the government to account). And now, as the Empire is collapsing, those in power will write more corrupt laws and interpret the rights given to the people (whether natural rights or constitutional rights) in narrower and narrower ways to maintain their power. And we will see this ongoing process more and more as the Empire continues its slow collapse.

  9. Joey says:

    Do you need the Constitution, and Arms that 2nd Amendment prevents the Federal Government from taking away from you, to grant you permission to defend the Constitution against a government that defends and upholds the Constitution. No. Do need those arms against Hitler, Stalin, Mao, or Pol Pot operated that exterminates people who don’t vote for the right candidate? Yes. Our current government is attempting to take away those arms. They also have ignored/destroyed/annhilated the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th, and 13th amendments… operate 90% of the government budget based on one phrase …they have gone to illegal wars, won’t allow challenges to legality of candidates, and enslave our posterity in debt slavery. The courts have denied standing to peons who challenge government action on Constitutional grounds. The Supreme Court has actually ruled on gun cases allowing infringement of the gun possesion despite the 2nd Amendment saying that they have no ability to even infringe on Arms possession. Therefore, the Constitution is no longe in force, only some happy, pretend version that is used to keep the masses from rioting. If the government doesn’t follow the Constitution, why should the citizenry ‘seek Constitutional permission’ for the right to defend and uphold the Constition, which is the only reason the Federal government exists… Why would a government give its citizens the right or ability to overthrow the Constitution (but ones calling for revolution are not calling for the overthrow of the Constitution, they are calling for restoration)? They wouldn’t. Why would a government need to worry about the restoration of Constitutional governance if, indeed, the government was following and upholding the Constition. They wouldn’t.

    The biggest reason to keep the 2nd Amendment and high capacity personal defense weapons legal for civilians: Two officers just used their high capacity ‘personal defense weapons’ to shoot at least 36 bullet holes into a pickup truck driven by two women who drove a ‘similar vehicle to that of a suspect’ in a state where high capacity guns are banned for civilians. If a government has no fear of its citizens, the default police interaction with people driving blue pickups is: pow. pow. pow. pow. pow pow. pow. pow. pow. pow. pow pow.pow. pow. pow. pow. pow pow.pow. pow. pow. pow. pow pow.pow. pow. pow. pow. pow pow.pow. pow. pow. pow. pow pow.pow. pow. pow. pow. pow pow. ‘Freeze, are you two ladies the cop killer we’re looking for’???

    • theozarker says:

      Look Joey, I doubt you and I will ever agree on the meaning of the second amendment. That’s why the founding fathers set up a supreme court as a final authority in interpreting law and fact. “…Shall not be infringed” does not mean rights (including the right to bear arms) can’t be limited. It means they can’t be taken away. Every right has its limits or there are no rights. You can’t force your religion on me, nor can I force mine on you; you can’t yell “fire” in a theater; you can’t own a gun if you are a felon, and so forth. There are 300+ million people in the United States and every single one of them (not just you and me)have slightly differing views of what the Constitution means. Again, that’s why the founding fathers set up a supreme court. No president, no congress person, no judge is going to please all 300 million of us all the time. What you see as a move to “take away your guns” by limiting civilian access to certain types of weapons, I see as a reasonable limitation on your right to bear arms. I recognize your right to own firearms, but I don’t see the need for you to own military style weapons unless you are in the active military. You may have a natural right to take up arms against a government (that is “my” government as much as it is “your” government”), but you do not have a Constitutional right, because the Constitution doesn’t give you one. It does, however, give the government a right to use the Militia to defend itself from you. (Article 1, section 8 “Congress shall have power … to provide for the calling forth of the militia to execute the laws of the land, SUPPRESS INSURRECTIONS and repel invasions.” And if you decide to exercise some “natural” right to take up arms against the government, I doubt that having a semi-automatic weapon against tanks, drones, etc. is going to do you much good. Now, this is just my opinion from frequent readings of the Constitution, but there you go.

  10. LIttle Joe says:

    The Constitution guarantee that money would be in coin and not paper and the coin would be Gold, silver or copper.The politicians got around it and the sheple accepted it but as the law reads in the constitution it is not allowed,So which is it? They way it was written or the way it is observed now?

    You see the Constitution meaning has been adulterated just like having your spouses being unfaithful to their vows.So your perception of what the second amendment means and what it means when your government robs you of your pursuit of happiness,,,well you get the picture.

    LJ

    United States Constitution does not mention paper money by that name. Nor does it refer to paper currency or fiat money in those words.[1] There is only one direct reference to the origins of what we, and they, usually call paper money. It is in the limitations on the power of the states in Article I, Section 10. It reads, “No State shall . . . emit Bills of Credit . . . .” Paper that was intended to circulate as money but was not redeemable in gold and silver was technically described as bills of credit at that time. The description was (and is) apt. Such paper is a device for expanding the credit of the issuer. There is also an indirect reference to the practice in the same section of the Constitution. It reads, “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts . . . .” Legal tender laws, in practice, are an essential expedient for making unredeemable paper circulate as money. Except for the one direct and one indirect reference to the origin and means for circulating paper money, the Constitution is silent on the question.

    Article I, Section 8 has never been amended and still states:

    “The Congress shall have Power…To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.”

    Notice that it does not say “print” money.

    • theozarker says:

      LOL, okay I’m going to try this one more time, Joey. The second amendment consist of one sentence with three phrases – since there are no semi-colons between the phrases, only commas, the second and third phrases refer back to the first – “A well regulated Militia”. But the well regulated Militia referred to in the second amendment is clearly defined in Article I, section 8 of the Constitution as a power of Congress- both in calling it forth to uphold the laws, suppress rebellions and repel invasions and in providing for organizing, arming and disciplining the Militia. Nowhere are these powers given to the states or the people. The states were given the powers to name the officers and to train the Militia according to the disciplines prescribed by Congress. The people were given the right to keep and bear arms because a well regulated Militia is necessary to the security of a free State (by upholding its laws, suppressing rebellions against it and repelling invasions of it).

      That the current (and recent) governments of what has now become an Empire – and one in decline, at that – routinely twist the meaning of the Constitution for their own purposes is clear. That is the nature of Empires and it will only get worse as the decline continues. So the question isn’t whether the Imperial government follows the Constitution its various members swore to uphold, because the answer to that is “of course they don’t when it is inconvenient to them to do so.” The Empire is slowly coming apart so, for me at least, the question is, what – if anything – do we citizens do about it?

      We can continue to use the means of persuasion given us in the Constitution – free speech, the right of dissent, petition against grievances, challenging in the courts and, of course, voting the rascals out, (for an excellent look at why these means have become less and less effective, you might want to read John Michael Greer’s excellent three part series on Democracy over at the Archdruid Report http://thearchdruidreport.blogspot.com/ – look in the sidebar for links) honing these skills of democracy while localizing and preparing, as best we can, for the inevitable fall.

      Or we could “tear the place down” with an armed (but unconstitutional) rebellion against the government – which would probably destroy much of what’s left of the country in a civil war, leaving us with an even more overbearing federal government (assuming we lost the fight) and/or even fewer political, economic and natural resources to survive the fall of the Empire (assuming we “won” the fight).

      As always, only my opinion, but there you have it from where I sit.

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