Who Repealed The Second Amendment?
And By What Authority?
IN SEARCH OF THE SECOND AMENDMENT:
The Second Amendment is quite plain to most
A well-regulated militia being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be infringed.
87% of us--the common people--understand that this Amendment
refers to an individual right. The problem is, the "right" has been reduced
almost to a nullity by Congress, the U.S. Supreme Court and our federal
judiciary. Those individuals are almost all members of a class of people
that--at the time of the ratification of the Bill of Rights--were considered
only one step above the occupation of the common thief--lawyers.
Their position in the courts has been that the "right"
is a collective right and applies to the States, not the individual.
A great number of "law professors" support that nonsensical
viewpoint. See, e.g., Handgun Prohibition and the Original Meaning of
the Second Amendment, Don B Kates, Jr., Volume 82 Michigan Law Review
204, 207, note 11 (1983).
This "collective right" theory was first enunciated
by the Kansas Supreme Court in 1905. Salina v. Blakesly, 72 Kansas
230; 83 Pacific Reporter 61 (1905). The theory is patently wrong. Handgun
Prohibition, supra, page 211, note 31. As Mr. Kates, in Handgun
Prohibition pointed out, the word "people" in the First and Fourth
Amendments ("individuals") did not change meaning in the Second.
Not to mention that "States Rights" received its
death sentence at Appomattox in 1865.
Mr. Kates position is borne out by the history of
the ratification of the Second Amendment itself. See B. Schwartz, The
Bill of Rights: A Documentary History, 1153-54 (1971).
In testimony before the Senate Subcommittee to Investigate
Juvenile Delinquency, Senator James L. Buckley (R.- N.Y.) reiterated this
position during the course of discussion of proposed handgun regulation:
At the time of the adoption of the Bill of Rights, this country's statesmen
were concern with the need to protect citizen's from government itself,
and the passage of almost two centuries has not negated the validity of
this concern. The fact that Article I, Section 8, clause 16 of the Constitution
grants Congress the power to organize, arm and discipline the militia clearly
indicates a quite different intention for the Second Amendment.
Congressional Record, S. 6889 (daily ed. April 28, 1975) (remarks of
One must, of course, understand the meaning of the Constitution
by the intent of those who wrote it. Ex Parte Bain, 121 U.S. 1 (1887).
The American Bar Association supports "gun control."
Handgun Prohibition, supra, note 13. As does the ACLU.
Not surprisingly, these "scribble warriors" of the
lawyers bar (and the major media in lock-step) are extremely protective
of the First Amendment (freedom of speech and the press) while relegating
the Second Amendment to merely a passing glance.
My proof of this? Pick up a copy of West's United
States Code Annotated, the volume titled Amendment 1 to 3, in almost any
law library. The court cases explaining the First Amendment number from
page 9 to page 947. The court cases addressing the Second Amendment number
949 to 955.
Worse, many of the court cases cited in those pages
are simply wrong. For example, in United States v. Oakes, 564 F.
2d 387, 394 (10th Cir. 1977), the judges (including Chief Justice Lewis,
whose duty it was to keep the other "public servants"-- i.e., the judges--in
line) held that the purpose of the Second Amendment was to preserve the
effectiveness and assure the continuation of the state militia.
Oakes was convicted of the possession of an unregistered
machine-gun. Oakes had been "set-up" for the bust by a BATF agent. Your
tax dollars at work.
The judges' strained and twisted misuse of the word
"militia" as referring to a body of troops sanctioned by the individual
state is easily refuted.
First, let's consider how Congress (the people we
vote in and--not frequently enough--vote out) defines "militia" in clear
and immutable terms:
10 U.S.C. § 311 Militia: composition and classes
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section 313 of
Title 32, under 45 years of age who are, or who have made a declaration
of intention to become, citizens of the United States and female citizens
of the United States who are members of the National Guard.
Section 313 of Title 32 merely refers to those individuals
who are already members of the National Guard. The nineteenth century Supreme
Court flatly stated that, "the militia is all citizens capable of bearing
arms." Presser v. Illinois, 116 U.S. 252, 265 (1886).
This has been true since the first Militia, Act 1 Stat. 271 (1792),
enacted by the Congress. Today's Supreme Court, in the words of one law
professor, ". . . shamefully refuses to discuss the issue." The
Embarrassing Second Amendment, 99 Yale Law Journal 637, 654 (1990).
Another law professor pointed out, ". . . the Supreme Court admitted exceptions
to the right to keep and bear arms but refuses to recognize the right itself.
2 William and Mary Law Review 381,405 (1960).
Another law professor (for obvious reasons, I am
only quoting the ones on "our side", you can get all the others on the
"glass toilet") pointed out that the lower courts (those under the U.S.
Supreme Court) generally have either adopted an interpretation that is
implausible on its face, inconsistent with earlier Supreme Court precedent
and unsupported by historical evidence about the intention of the Framers,
or they have adhered to ancient precedents that treated the Bill of Rights
as being inapplicable to the States.
This particular law professor also pointed out that
the Supreme Court, moreover, inscrutably denies all petitions for certiorari
(discretionary review). The Second Amendment, Political Liberty, And
The Right To Self Preservation, Vol. 39 Alabama Law Review 103 (1987).
Professor Nelson Lund, who authored the above Alabama
Law Review article (and whom I nominate to be U.S. Supreme Court Chief
Justice), also pointed out other items of interest. On page 107, note 8,
he states that "well-regulated" means "properly disciplined", not "government
controlled". On page 112, note 24, he states that the "collective right"
interpretation is virtually baseless (as in the Oakes decision). On page
114, he states that the militia was intended to be a counterweight to government
military forces. Finally, he reminds us that federal judges have a duty
to enforce the Constitution whether they agree with it or not.
Put five men like Professor Lund on the U.S. Supreme
Court and the NRA could fold up shop and go on to other concerns. The present
Supreme Court could easily be impeached. Every federal judge takes a solemn
oath to uphold the U.S. Constitution. 28 U.S.C. § 453. Violation of
that oath is grounds for impeachment. U.S. Code Cong. & Admin. News,
page 6896 (1990).
Earlier Supreme Courts recognized that the right
to keep and bear arms shall not be infringed by Congress. Presser, supra;
also United States v. Cruikshank, 92 U.S. 542, 553 (1875).
Today's Congress infringes on those rights on a regular
basis--The Brady Bill, the "assault rifles" ban-- etc. etc. In order to
do so Congress invokes the interstate commerce clause of the U.S. Constitution
at Art. I, sec. 8, clause 3. Today's Supreme Court upholds that nonsense.
Scarborough v. United States, 431 U.S. 563 (1977).
How did we have our Second Amendment rights taken
away (don't think Big Brother is finished yet) and for what purpose?
Let's start with "how."
Congress enacted a "tax" on sawed-off shotguns in
1934. Jack Miller and Frank Layton, from Oklahoma, drove a sawed-off shotgun
into Arkansas and were indicted for that in 1938. The federal district
court judge, Heartsill Ragon, simply quoted the language of the Second
Amendment, declared the statute unconstitutional, and dismissed the indictment.
United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939). Judge
Ragon's published ruling covers about one-half page.
That ruling was appealed by government prosecutors.
Those prosecutors then "had their way" because neither Miller or Layton,
who both had disappeared, presented their side of the issue to the Supreme
The Supreme Court ruled as follows:
in the absence of any evidence tending to show that possession or use
of a "shotgun having a barrel of less than eighteen inches in length" at
this time has some reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument. Certainly it is not within
judicial notice that this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense.
Aymette v State of Tennessee, 2 Humph., Tenn., 154, 158
Of the eight Supreme Court justices who voted for this,
six had absolutely no military experience. The other two, Hugo L. Black
and Stanley F. Reed, received the rank of captain of artillery (1917) and
first lieutenant (1918) respectively without ever seeing combat or leaving
American soil. James Clark McReynolds, who authored the opinion in Miller,
had no military experience whatsoever. The then Chief Justice, Charles
Evans Hughes, was apparently a pacifist, having been the chairman of the
International Conference on Limitations of Armaments, elected to the League
of Nations (the first try for a "U.N.") and who-knows-what else.
Miller was held to be an outdated opinion
as long ago as the beginning of WW II. Cases v United States, 131
F. 2d 916, 922 (1st Cir. 1942). Sawed-off shotguns have considerable utility
as military weapons. From Trenches To Squad Cars, Black, The American
Rifleman, June 1982, pg. 30.
Ask anyone who has ever crewed on a tank which weapon
he wants when an enemy soldier pries open a hatch cover: a rifle too awkward
to get into position, a pistol that has to be aimed, or a sawed-off shotgun
that merely has to be pointed straight up.
As another law professor put it, most Gun Control
Acts enacted by Congress are mere political grandstanding. Enforcement
of Gun Control: A Victimless Crimes Analysis, 16 Criminal Law Bulletin
131, 132 (1980).
Once the Supreme Court upheld the first violation
of the Second Amendment, "grandstanding" by Congress increased. In recent
years, the trickle of anti-Second Amendment violations has become a deluge.
Why? Because when our Republic was first founded,
the right to keep and bear arms was equated with the right to revolt. 2
William and Mary Law Review 381, 385 (1960). On page 393 of the same article
the author quotes Patrick Henry, who sarcastically referred to the remote
possibility that Congress would use the militia wisely.
As Henry's contemporary George Mason pointed out,
the most effective way to enslave a people is to disarm them. 3 The
Papers of George Mason 1725-1792, page 1075 (Robert A. Rutland edition,
1970). A government resting on a minority is an aristocracy. That aristocracy
is not safe without a standing army, an enslaved press and a disarmed populace.
82 Michigan Law Review 204, 228 (1983). Aristotle and Sen. Hubert H. Humphrey
both made similar statements. Id., pages 232 and 271.
Only governments have ever disarmed any considerable
class of people as a means towards their enslavement. Free Speech For
Radicals 104, T. Schroeder, (reprint edition 1969).
The original intent of the framers of the Second
Amendment was not only for the people to have the right to be armed, but
to be armed at a level equal to the government. The History of the Second
Amendment, 28 Valparaiso University Law Review, 1007, 1009 (1994).
One of the fears of the framers of the Second Amendment
was that the central government would bring into being a professional police
force, precisely the kind of hireling body considered dangerous by conventional
political theory. The Embarrassing Second Amendment, 99 Yale Law
Journal, 637, 646 note 46 (1990).
This has been recently demonstrated by the BATF and
the FBI at Waco, Texas and Ruby Ridge, Idaho.
You will notice that the "privileged elite" somehow
manage to maintain control of their weapons (remember Sen. Ted Kennedy's
bodyguards found with fully automatic guns in the Senate building in the
1980s ?) while constantly attempting to deprive the rest of us of ours.
This isn't anything new. As long ago as the seventeenth century the English
Stuart kings enacted the Game Act of 1671, 22 Corr. 2, chapt. 25, Section
3, limiting the possession of a firearm to English noblemen. In 1689, a
year after the Stuarts were replaced by William and Mary, Englishmen got
their guns back.
In the next century the English government passed
a law disarming the Scots. The Whig clans, to show loyalty and obedience
to the English government, surrendered their weapons. The Jacobite Highland
clans, hostile to the English government, hid theirs. In 1745 the friends
of the government were disarmed while its enemies were in a state of preparation.
Customs and History of the Highlanders of Scotland, Sir Walter Scott,
In 1745 English government forces were soundly defeated
at Prestonpans. The Scots lost to the English Army in 1746 at the Battle
of Culloden, more attributable to their leaders' mismanagement than their
lack of weapons.
We have exactly the same problem. While the New York
Times editorializes that ". . . the urban handgun offers no benefits. .
. ", its publisher, Arthur Ochs Sulzberger, had a New York City permit
to carry a gun at all times. As did gun prohibition advocates Nelson Rockefeller
and former New York Mayor John Lindsay.
Psychologist Dr. Joyce Brothers, who has publicly
stated that men posses guns to compensate for sexual dysfunction, did not
have a gun permit. Her husband did. Handgun Prohibition And The Original
Meaning Of The Second Amendment, 82 Michigan Law Review 204, 207, note
Finally, we come to the end of the problem and the
beginning of the solution: get rid of the people causing the problem. The
NRA does an excellent job of targeting anti-Second Amendment politicians
and defeating them. Unfortunately, the NRA (of which I am a member) appears
to remain completely clueless as to the role of the federal judiciary in
our disarmament. An occasional federal judge does appear to recognize that
marksmanship is still important. Garett v Alexander, 477 F.Supp.
1035, 1051 (D.C. D.C. 1979) (". . . providing the United States with marksman
for service to the country in the event of war) (Harold H Greene, District
When an employee does not perform satisfactorily,
you fire him.
A Congressman you vote out of office.
The process of getting a corrupt, arrogant or otherwise
misbehaving federal judge off the bench begins on the floor of the House
of Representatives. A Bill of Impeachment can be brought by a single member
of that body, as Gerald Ford did to Abe Fortas in 1969.
Write your Congressman and tell him what you want
done, why (send him a copy of this article), and to whom. If he refuses,
his re-election is a few months away.