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.