Over the years, many legislators “illegally”
embellished their constitutional rights by introducing, voting for, and legislating
laws that superseded our Constitutional limitations.
Americans are now facing that same “illegal”
and “superseding” of our Constitutional limitations on the Second Amendment. –
Oscar Y. Harward
Many people and organizations misconstrue the Bill of Rights including the 2nd amendment. The Constitution does not grant rights. The Bill of Rights does not grant rights. The Constitution specifically defines the powers delegated to the federal government, restrictions on both the federal and state governments (to different and varying extents), and the structure of government. The Bill of Rights were changes — amendments — to the original Constitution and they included further restrictions and declaratory statements regarding the delegated powers and Constitutional construction.Generally speaking limitations or provisions on a single delegated power are including within the body of the power itself. However, restrictions or limitations that cover all powers or multiple powers are stand-alone. For instance, Article I Section IX clause 3 states “No Bill of Attainder or ex post facto Law shall be passed”. Likewise, clause 5 of the same section states “No Tax or Duty shall be laid on Articles exported from any State.” Note the use of the word shall explicitly prohibits laws of this nature.
In practice, this means that Congress can pass laws that fall within the enumerated powers of Section I Article VIII but that law cannot be a bill of attainder, an ex post facto law, or a law they levies a tax or duty on State exports. The restrictions in Article I Section IX apply to all the powers of Congress, not just a single power. Likewise, the 9th and 10th amendments are ones of construction and apply to the entire Constitution not a single power. Even if Congress passes a law within the enumerated powers of Article I Section VIII, those laws cannot violate the 9th amendment (it wouldn’t violate the 10th amendment if the law indeed fell within the enumerated powers).
The first eight amendments to the Constitution are further restrictions on the federal government. The 2nd amendment does not grant people the right to bear arms. The 2nd amendment FORBIDS the federal government from doing anything to infringe on your unalienable right to self-defense. The last four words in the 2nd amendment are “shall not be infringed“. This means Congress, the Executive, or the Judiciary cannot pass a law, sign an executive order, or adjudicate a case that would result in an infringement of your rights to bear arms, to have ammunition, or accessories for your arms. Even if Congress passed a law regulating the commerce of arms or ammunition it would violate the 2nd amendment just as a ex post facto law would violate the restrictions in Article I Section IX.
Moreover, if the amendments to the Constitution were incorporated directly into the body of the Constitution (as many in Congress advocated), the second amendment would have naturally fit into Article I Section IX along side the restrictions on bills of attainder and ex post facto laws.
Most of the founding generation were Englishmen. English history spans many centuries. The primary concern of the founding generation was the rights of Englishmen. This was the basis for the clarion call “no taxation without representation”. The very idea that the colonists could be taxed by King George was insulting because the colonists had absolutely no representation in Parliament. The concept of due process of law wasn’t invented by the colonists. It goes back several centuries to the Magna Carta of 1215. Englishmen had a long history of securing certain rights including due process, trial by jury, etc. That history also applies to the 2nd amendment.
In the 10th century, King Alfred of Britain required each adult male to possess weapons to defend Britain.
In the 12th century, King Henry II recognized these fundamental rights in the Assize of Arms in 1181.
Henry VIII modified the law and required fathers purchase long bows for their sons age 14 and older and train them in their use.
Under Queen Elizabeth I, local citizens formed militias in each county and were led by a loyal knight.
In 1628, Parliament issued the Petition of Rights which outlined King Charles’ violation of his subjects’ rights. Shortly thereafter King Charles began to raise standing armies, and eventually when Lord Cromwell reigned he attempted to disband the local militias.
King Charles II attempted to reinstate standing armies and disarm the people. King James II continued his father’s policy of disarming the people.
In 1688, King James II was deposed by William of Orange. After the “glorious revolution” Parliament restricted the power of the King through the Bill of Rights of 1689 or more accurately, the English Bill of Rights. The Bill of Rights codified the preservation of the right to bear arms.
The following four paragraphs are from a paper by Andrew Wayment titled “The Second Amendment: A Guard for Our Future Security” and include Blackstone’s views on the right to keep and bear arms.
William Blackstone’s Commentaries on the Laws of England, in which he explains the underlying purpose of the right to keep and bear arms as understood in the English common law. According to Blackstone, the liberties of Englishmen are reducible into three principal rights: the right of personal security, the right of personal liberty, and the right of private property. However, Blackstone asserted that any declaration of these rights would be meaningless “if the constitution had provided no other method to secure their actual enjoyment.”
The common law, therefore, developed barriers against infringement upon these rights. According to Blackstone, whenever the government infringed upon any of the three principal rights, the people could employ certain auxiliary rights to ameliorate the problem. First, the people had the right to apply to the court system for redress of injuries. Second, the people had the right to “petition the king, or either house of parliament, for the redress of grievances.” However, if these branches of government failed to provide the necessary relief, then the people had the right of having and using arms for their defense and self-preservation “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
According to Blackstone, English common law recognized the right to own guns as a way for an individual to protect himself and “the three great and primary rights” in the face of an actual violation or attack by a tyrannical government. In essence, under the common law, individual gun ownership is to serve as the final safeguard when the government fails to protect the rights of the people.
Legal scholars, judges, and lawyers in colonial times and after the ratification of the Constitution used Blackstone’s Commentaries as a reference to help them understand the various aspects of the common law. Blackstone’s ideas concerning the underlying purpose of the right to keep and bear arms must have reflected and significantly influenced the colonists’ understanding of this right under the common law, and led them to take the actions they pursued in the Revolutionary War and in the drafting of the Second Amendment.
In 1775, the British attempted to disarm the colonists in New England. General Gage’s army disarmed many of the individual citizens in Boston. The Continental Congress issued its Declaration of Causes and Necessity of Taking up Arms and one of the grievances in the declaration was disarmament of the people.
As nearly all the founding generation were rightly concerned with their rights as Englishmen the inclusion of an amendment restricting the federal government from infringing on the right to self-defense is reasonable given the history of Britain specifically, and mankind generally. Moreover, the amendment formally recognizes self-defense as the final act for the people to defend themselves against tyrannical and despotic government. Several centuries of English experience taught the founding generation that words written on parchment can be abridged by brute force and raw power. Rulers ignore rules for various reasons and by many justifications, however by doing so, transform themselves into tyrants and despots.
Ultimately, it is our experience, not our reason or common sense, that dictates the peoples’ right to self-defense. Though much of this history occurred two or more centuries ago, the 20th century was the deadliest in the history of mankind. The people of the Soviet Union, China, and Germany were disarmed and hundreds of millions of people were killed. This doesn’t imply everyone wishing to disarm the people will ultimately kill large numbers of people. However, this is the path which not only allows that possibility it enhances that possibility. Prudence dictates citizens should be alarmed whenever the jewels of liberty are encroached upon, as they must be defended vigorously, for we never know precisely what one man, one government is capable of doing to its citizens, or when that may happen.
Scott Strzelczyk is the Executive Producer and fill-in co-host of the popular Forgotten Men Show broadcast weekly on 930 WFMD. He is also a leader in the Liberty Movement and owner of a provocative blog A Citizen’s View.
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