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The Reasoning Behind the Second Amendment

February 22, 2011

A lack of understanding our national history leads to erroneous debate surrounding the Second Amendment to the Constitution of the United States.  Only by pealing back time does the correct view of its meaning take place.  Regardless of how loudly either side in the argument (gun ownership rights vs. banning guns all together) screams, the Second Amendment’s meaning is what it was back in 1791, when the States ratified the Bill of Rights.

Without question, the twenty-seven words of the Second Amendment are some of the most debated in American History.  In retrospect, one may wonder why our Founding Fathers constructed an amendment with such an ambiguous meaning, but that is the point – it is not ambiguous.  The text of the amendment reads, “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.[1]”  In reading the amendment, if taken in the context of 1791, its meaning is clear.

Starting at the beginning, in May of 1607, England established its first permanent settlement in North America, Jamestown[2].  From then until February 1912, with the statehood of Arizona, the colonies and Untied States, as a nation, had frontier territory contained within its boarders.  Taking Alaska and Hawaii into account, the date moves to 1959.   The term frontier implies a certain wildness and untamed nature.  Even after statehood, vast areas within newly formed states remained untamed for years.

Since Jamestown, and through the implementation of Manifest Destiny, the areas of America’s frontier changed, changing the needs of the citizens along with it.  For instance, 1881 Washington, DC has more in common with today’s metropolitan areas than it did with the Western frontier town of Fort Sumner, New Mexico of its day.  Two notable killings took place that year, one carried out by a county sheriff and his posse (a type of temporary militia used at the county and town level) the other,carried out by a lone gunman.

The sheriff’s situation is well-known.  He was Pat Garrett and his posse (the number of men in posse is hotly debated) hunted down Billy the Kid in Fort Sumner[3].  Washington’s lone gunman has less notoriety, his name: Charles Guiteau.  Guiteau surrendered to Washington police who arrested him for the assassination of President James Garfield[4].  The point is, in the West, militias (posses) were commonly employed to answer specific needs while Washington counted on a police force.  As settled areas become stable, and communities grow, the dangers faced by its citizens change.  In Washington the need for a ready response of arms was no longer required, while in Fort Sumner existence itself depended on it.

In respect to the Second Amendment, it is the dangerous nature of frontier land, which promoted the need of local militia.  As settlements grew, displaced groups, like Native American, took exception to loosing land they lived on for years, if not centuries.  Moreover, settlers gave little notice to treaties with tribal governments or boundaries of native lands, making hostilities inevitable.

Before the American Revolution, the overall duty to protect citizens fell to the British Army.  The size of the colonies made protection impossible.  With its vast territory and over 3,000 miles distance from England, the American Colonies presented the British Army with a very large logistics problem.  The Army’s primary concern was holding off encroachment of other nations, like France and Spain, into areas England claimed.  This left far-flung settlements at the mercy of angry Native-Americans, as well as raiding parties of the other nations.  Raising local militia solved the immediate assistance issue.

At the outbreak of hostilities, a settlement’s government called out their militia.  The unit was expected to meet the particular event and resolve it, or at least hold out until regular army troops arrived.  It was a system of mutual benefit to the Crown Government as well as the colonists.

The most famous militia organization was the Massachusetts Minutemen.  The romantic view of this militia is farmers grabbing their guns and running to fight when called upon by the likes of Paul Revere.  In truth, the Minutemen were a formal militia unit given a charter by the Massachusetts Provencal Congress in 1774[5].  Every community supplied men for their local militia similar to the Minutemen, but all were under the control of some sort of civilian authority and not a rabble with bad intent.

Some of the same militia units employed in support of regular British Army units before the American Revolution, later supported, if not enrolled in whole in the Continental Army under General George Washington.  In fact, General Washington’s first experience in military affairs was as adjutant in charge of Virginia’s Southern District Militia.  In this role, Washington inspected, mustered, and regulated the various companies of men.  He later led Virginia’s Militia into the Ohio River region and briefly fought regular French troops and their Algonquin allies in the engagement that began the French-Indian War[6].

After America’s independence from Great Britain, the new federal army faced the same logistical issues suffered by the British before them.  Again, local militias formed to meet the need.  Again, the various governments authorized and organized militia under local authority.

One such organized unit was the First Regiment of the Chatham County Mailias, which served the Savannah, Georgia region.  Shortly after the war in 1786, a group of runaway slaves, which fought with the British “refused to return to the service of their owners,” as a history of the time put it[7].  No right-minded person could possible blame them.  This group marauded and waylaid traffic along the Savannah River.  Numbering over thee-hundred armed men, they were more than the normal civil authority (the county sheriff) could remotely handle.  The First Regiment Militia, assisting regular army troops stationed at Beaufort, SC. routed the men from their encampment in the swamps along Bear Creek and restored order.  As a side note, any society that chooses to enslave a large portion of its population is well advised to keep a sizable militia handy.

In the end, during our initial development as a nation, individual states required the militia to maintain order.  Rather than a position of sinecure, militia served, earned their pay (or received no pay at all) and often died in the process.  It was left to the federal government to maintain a national army and to the states to maintain a self-policing force the national army called upon from time to time.  That is what the Second Amendment is about, the ability of the individual states to maintain civil order and assist in national times of need.  Standing armies are costly.  Avoiding that level of public debt, states organized militia groups.

While gun advocates point to the Second Amendment and claim the right of gun ownership, the Amendment does not interfere with each individual state’s ability to regulate the practice.  In truth, it does not even require a state to allow gun ownership.  It simply prevents the federal government from outlawing it.  Unlike the First Amendment, the Second does not enumerate several different rights; it limits the authority of the federal government to interfere with individual states and citizens protecting themselves.

One reason militia worked before and not now – the large variety of weapons available.  Until the time of the Civil War, a man with a musket only needed a few pieces of flint, some bulk lead, and a supply of gunpowder.  With the limited caliber of muskets, casting of balls was a simple process handled in the field camp; many men carried their own casts simplifying matters further.  With the invention of cartridge style ammunition, supplies of pre-manufactured bullets for each type of weapon are required.  Imagine the supply chain nightmare of supporting a unit in the field with a dozen or so different cartridges.  Simply put, no longer can a government expect to supply ammunition to citizens bringing their own weapon to a fight; the variety is overwhelming.

Today, the National Guard takes on the role the militias filled in years past.  They are a hybrid of militia groups and a standing army.  Fringe survivalist groups claim some tie-in to our historic militia groups, but they lack the charter and civil oversight to operate in the public interest.  In the end, they are a bunch of guys with guns that challenge the civil authority, not work to protect the population at large.  Mostly, the need to call men at a moments notice to man the parapets is gone.  Organized militias, as intended by the Second Amendment, are simply of no practical use today.

It is easy to get caught up in the rhetoric of organizations like the National Rifle Association and its focus on the later half of the amendment, the “right of the people to keep and bear Arms, shall not be infringed” portion.  What they fail to acknowledge is the role the states play or the “A well regulated Militia, being necessary to the security of a free State” portion.  Of course, the gun control fanatics are just as far off point, as the amendment does afford citizens the right to own a gun at the federal level and a state walks a fine line when they attempt to limit that right.

What both groups fail to understand is we do not live in 1791 anymore nor is our society some utopia where we sit around a campfire and sing Kumbayah.  Guns and gun related violence exist in our society today.  It is true statement that outlawing citizens from owning guns leaves only the criminals with gun.  It is equally true that improvements in firearm technology places in the hands of one individual the means to rapidly murder dozens of citizens.  The tragic events at Virginia Tech come to mind[8].

The Founding Fathers never intended our Constitution and the Bill of Rights to be static.  After two-hundred and twenty years of development, both in society and technology, it is about time we revisit the Second Amendment and modify it to reflect the times today.  Outlawing gun ownership is not any sort of answer, just as it’s not an answer to allow any nut with a diver’s license to own a bazooka.  What we really need is to address the issue respecting various points of view and craft a new amendment that will serve the United States over the next two-hundred and twenty years.

Follow Up Reading:

Here is another blog post expanding on the issues of rights and gun control: Guns, Driving and Our Rights

 


[1] “The Constitution of the United States of America,” Amendment 2. GPO Access Home Page. Web. 22 Feb. 2011. <http://www.gpoaccess.gov/constitution/html/amdt2.html>.

[2] “Jamestown Settlement.” Official Jamestown Settlement & Yorktown Victory Center Visitor’s Site. Web. 22 Feb. 2011. <http://www.historyisfun.org/jamestown-settlement.htm>.

[3] “Billy the Kid.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011. <http://en.wikipedia.org/wiki/Billy_the_Kid#Death>.

[4] “Charles J. Guiteau.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011. <http://en.wikipedia.org/wiki/Charles_Guiteau#Assassination_of_Garfield>.

[5] Microsoft Encarta Encyclopedia Standard: 2004, Redmond, WA: Microsoft Corporation.

[6] “The French and Indian War.” Antique Prints And Maps From The Philadelphia Print Shop. Web. 22 Feb. 2011. <http://www.philaprintshop.com/frchintx.html>.

[7] Charles Jones, Jr. The Life and Services of the Honorable Maj. Gen. Samuel Elbert (Cambridge: The Riverside Press, 1887), SUPPLAMENTAL NOTES, 47.

[8] June, Early. “Virginia Tech Massacre.” Wikipedia, the Free Encyclopedia. Web. 22 Feb. 2011.  <http://en.wikipedia.org/wiki/Virginia_Tech_massacre>.

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15 comments

  1. “The Founding Fathers never intended our Constitution and the Bill of Rights to be static”.

    You are correct in this to a defined point. They did in fact intend it to be literal and static as well as be a strong restriction on the growth and power of the central government. Static, unless and only until the Congress OR the states put forth an amendment to it ratified by 3/4 of the several states. An amendment process that is very well defined in the Constitution itself.

    The 2nd Amendment, also was NOT written with the mindset and intention to quell the natives. That was included yes. But, moreover, the 2nd Amendment was intended as the ultimate check in the checks and balances system. It was written mainly for the people to be able to “throw off such Government, and to provide new Guards for their future security.” I applaud your overall attempt to straddle the fence but you fall a little short on the full historical facts. States like NY, VA and MA, in fact refused to ratify the Constitution unless text like the 2nd Amendment was not guaranteed to be added. And the way they wrote it was deliberate. Because of the placements of the commas, you almost have to read it in reverse to get it. But that was plain English of the day. I can go on and on and on with quotes and notations from the framers to support my stance and as a retort to your own, but none sum it up as clearly as one from Tench Coxe.

    “The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.” -The Pennsylvania Gazette, Feb. 20, 1788.

    What I read here in your “Reasoning behind the Second Amendment”, is not much different than when a scientist wants his/her experiment to conclude in a specific way as to answer the question the way they wish it to. A predetermined conclusion. What I read Mr. Benton is not much more than cherry picked statistics and information to conclude in a way to place you righteous to both sides. It does, fall short. The majority of what you wrote is true, oh yes. But it is only filled with portions of the stories, pieced together in a mosaic, that when the viewer steps back it is a portrait of either yourself, or what YOU WANT the Constitution to be. You left out quite a bit of the stories. It might serve you better to take a better look.

    As I finish off my reply to you I will leave you with something to think about. The document, the U.S. Constitution, is not a living document. They did not think that way in the late 1700’s. These people were literals. The document was written in the plain English of the day so that even if someone was illiterate, if someone else read it to them, they would easily understand it. Why would they define a quite finite system defining the method to change it, in the amendment processes, if it were a living, evolving document? No, they meant it to be taken exactly as it were written and follow as such. These were people that decided based on logic, not emotion. If emotion, they would have stayed with the crown. But logic won the time. It was illogical to remain under the control of the absent king. It was illogical for them to be taxed as they were and disarmed. There absolutely was emotion involved, but logic was where they decided. The British tried to disarm them. They refused to be disarmed. They knew that if a government had supreme power and control, liberty would die. Logically, they wrote the 2nd Amendment, to ensure that government could not misconstrue who was the boss. The people were to hold the ultimate trump card. The yeomanry, not the government. Think about it some more Mr. Benton.


    • First off, I wish to thank you for such a well thorough and thought-out response. While we may not see things in the same light, a healthy debate will surly hone both our points of view. To follow in your vein and provide a quote, here is one from the speech Benjamin Franklin composed to support the ratification of the Constitution:

      “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong.”

      It is in the light of aged reflection I welcome your comments.

      Often, the Constitution is referred to as a “living document.” As Supreme Court Justice Oliver Wendell Homes put it,

      “With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.”

      As such, it must change. While you rightly point out the vehicle of change is purposely difficult, but change is possible and expected. Moreover, just because a thing is difficult, does not mean it it not worth doing. My proposal does not grow government as you suggest. It simply reflects one of the unforeseen instances Homes alluded to.

      I do not take issue with your interpretation of Second Amendment. My point is the amendment is dated and must change to reflect life today, not life 221 year ago. I do not wish to outlaw guns, hell, I’ve owned them most of my life. Let me be specific, when younger I hunted. That is what I used guns for. I do not hunt anymore, but would never suggest preventing others from it. My guns are for protection, as any bastard that breaks into my home will find this out first-hand. I do not wish to prevent people from that either. Still, I have not problem with restrictions on gun ownership. We place limits on fundamental liberty all the time. I hold that the fundamental right to own a gun is second to the fundamental right to breath. If you wish the first, you must prove you understand the second.

      I feel I must apologize for my brevity and lack of knowing every story ever told, it must be nice to be in such a position as yours, Mr. Moquin. You are right, of course, I did pick stories to support my opinion. I would be a fool to do otherwise. It’s called rhetoric. It too was employed by our Founding Fathers in their debates regarding the Constitution, I have merely continued in kind.

      As for your ending sentiment, you could not be more wrong. Please forgive the hyper-corrective. The genius behind the Constitution is its use of loose constructionism. In other words, being a living document. Certainly you do not mean to imply the Constitution should be static as if formed in concrete. For far too long we, the people, have avoided the difficult task of citizenship. That needs to change. I served in the military to protect and perpetuate the radical idea our Founding Fathers put forward, a democracy. Such a nation is a powerful thing, as President Lincoln put it a nation “of the people, by the people, for the people, shall not perish from the earth.” The key being the people. The government must be a reflection of the people it represents, not the people it represented over two-hundred years past.

      For the last point and following your logic, we need to own tanks and such. I mean if the 3rd Armored Division rolls up on your doorstep, whatever pea-shooter you may have will not be up to the task. The point it moot as you no longer hold a trump card. The world has changed in profound ways since the writing of our Constitution. It is time we change the document to reflect that change. Maybe it is you that must rethink your position, Mr. Moquin.


  2. What is a person to do if they put all their faith in a governmentt and then that governmentt turns against its citizens? Doesn’t the second amendment exist because of this. i know people say these documents aren’t meant to be static but if great wisdom is divulged in a document would it be wise to stray from its wisdom or to attempt to change it?


    • Jake, how in the world can a group of guys with hunting rifles or even ak-47s going to stand up to the armament the government posses? Especially now the police departments can arm themselves with military surplus that makes anything citizens can posses look like a straw and paper spit-wads?

      While one solution may be to arm the general public with M-60s and fragment grenades it is not a country any of us would be willing to live in.


      • well that’s exactly what the British were banking on in 1776, “how can a bunch of rag tag colonists stand up to our armarda”, just like “how can a bunch of fragmented goat herders stand up to the emense power of the United States Military machine in Afghanistan”. The answer is in our orignal colonies (now states) motto’s like “live free or die” and “semper tyrannis”.


      • Gene,

        Are you saying we must place our children at risk so a bunch of “goat herders” as you call them can own a gun?


  3. thats cool i love history


    • Thanks, Hailey. I am glad you enjoyed reading it.


  4. Michael, you have the intention of the 2nd Amendment backward…. Because the right of the people to keep and bear arms cannot be infringed, the states, who’s freedoms and security are a necessity shall have a well regulated (trained and equipped in this definition) militia.
    This is well proven by the writing of Madison and Hamilton in the Federalist Papers.
    “The best we can hope for concerning the people at large is that they be properly armed.”
    — Alexander Hamilton, The Federalist Papers at 184-188
    If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
    — Alexander Hamilton, Federalist No. 28
    “[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.”
    –James Madison, The Federalist Papers, No. 46
    ” … but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights …”
    — Alexander Hamilton speaking of standing armies in Federalist 29

    You refer to George Washington yet Washington, himself said; “A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”

    We had a body of men who created the united States, who actually insured the the right to be overthrown, themselves, if they strayed into tyranny….. an idea that had never been put to law in the the history of mankind…. that people had the right to defend themselves and even overthrow their own government, if all else failed.

    “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” — Thomas Jefferson, (The Papers of Thomas Jefferson, p. 334, 1950)

    I suggest you read the preamble to the Bill of Rights, as the first paragraph ensures that the states are also under the jurisdiction of the Bill of Rights.

    You comment that “posses” are militia is false. the states have the authority over militias, the posse is appointed by a Sheriff, to act under duties set by a Sheriff and are not militias trained and appointed by the states.

    Lastly, you stated that the Nation Guard replaced the Militia…. actually, the National Guard is nothing but a reserve for the Federal Military and is in fact, as a replacement for the militias, unconstitutional. The Militia Act of 1917, disbanded all states militias and replaced them with a national reserve force in violation of Article I, Section 8, clause 16 which states;
    “Congress shall have the power….. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”
    Congress may provide for….(outlay of monies and support for) arming and disciplining the militia(s) and may govern the militia, ONLY in times that the militia(s) are employed in the Service of the Federal Government…. BUT the state are reserved the right to appoint the officers in the militia(s) and the authority to train the militia(s) under the rules of discipline set by Congress.
    Clearly, Congress has no authority under the Constitution, to disband the militia(s) or to create a reserve force to replace the militia(s), The Department of Defense appoints the officers in the National Guard and the states in no way train the National Guard, all training of the National Guard is conducted by each Department Branch and is subject to the Department of Defense.

    w


    • Pointing to Hamilton in retort is somewhat stilted. Besides, I think the greatest service Arron Burr did for this nation was to show up at Weehawken, NJ on that July day in 1804.

      Still, you do point out a valid ideal from President Madison. The question and primary point of my post remains, just where do we draw the line? Are you suggesting we citizens have the right to own a howitzer?

      I happen to agree with Washington by the way, but that does not mean I want a mentally deficient person, regardless of citizenship, form owning a weapon that can kill dozens in a few seconds. You fall back on rights, which is greater, the right to own a gun or the right not to be murdered by one?

      As for the Bill of Rights, you need to read up in just what rights are incorporated to the states.

      Given that you are obviously well-read, I find it a little disingenuous on your part not to understand my comment regarding a posse was an illustration for point and not to suggest they are literally the same thing.

      I take your point on the Militia Act of 1917. You position is clear and concise. My only confusion comes in understanding to what you are referring. I know the National Defense Act of 1916 and the Militia Act of 1903. Both deal with the National Guard. Moreover, assuming your reference is correct, I am much relieved to learn we no longer need depend on the Supreme Court as we have you to ferret out such mundane issues as the constitutionality of a law. If the states feel their rights have been trod on, they know the process to address it. As they have not, at the very least that is tacit approval by the various states.


  5. Id; see also United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (“The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a “reasonable relationship to the preservation or efficiency of a well regulated militia.'”) (citation omitted); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971) (“Since the Second Amendment right to “keep and bear Arms’ applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.”); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982) (“[I]t seems clear that the right to bear arms is inextricably connected to the preservation of a militia . . . . [W]e conclude that the right to keep and bear handguns is not guaranteed by the second amendment.”); United States v. Nelsen, 859 F.2d 1318, 1320 (8th Cir. 1988) (“Nelsen claims to find a fundamental right to keep and bear arms in [the Second] [A]mendment, but this has not been the law for at least 100 years… . [Since Cruikshank, courts] have analyzed the second amendment purely in terms of protecting state militias, rather than individual rights.”); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F.Supp. 1415, 1418 (E.D. Cal. 1990) (“It is clear that the Second Amendment guarantees a collective rather than an individual right”); Vietnamese Fishermen’s Ass’n v. Knights of the Ku Klux Klan, 543 F.Supp. 198, 210 (S.D. Tex. 1982) (“[T]he Second Amendment does not imply any general constitutional right for individuals to bear arms and form private armies.”).


  6. Michael,
    First thanks for your service and I’m glad to hear that you are a proud gun owner and exercising your 2nd Amendment rights! Hip, Hip Hooray!!

    I suspect that we probably agree more than we disagree so I offer the following in clarification. Good catch on your part about the Declaration of Independence and I offer the following to better explain why I initially referenced it. The “Spirit” of the Constitution is embodied in the The Declaration of Independence, because the former is essentially influenced by the latter.

    From The Declaration and the Constitution
    by Jacob G. Hornberger, May 2001

    “Throughout history, people have viewed the relationship between government and citizen as one of master and servant. It was always assumed that man’s rights came from government and, therefore, that it was entirely legitimate for government to regulate or even take away the “rights” that had been given the citizenry.

    If the king, for example, decided to confiscate a farmer’s crops, there was nothing the farmer could do but obey, because the farmer held his land and grew his crops through the good graces of the king. If the king imposed a maximum price that could be charged for the farmer’s crops, the citizen obeyed because the king, as sovereign, was ultimately the owner of everything.

    If the king granted monopolies to selected people to produce or sell certain items, such as royal playing cards, no one would dare to disobey the order, for a person’s livelihood was unconditionally subject to the dictates of his ruler. Or if the king ordered a citizen to leave his family to do battle in behalf of the kingdom, the citizen would rarely think of questioning the order.

    Thus, the situation was such that people were beholden to the king for whatever degree of “liberty” he would permit them. Sometimes the king was good and would allow his people a significant amount of “liberty.” Other times he was not so good and would allow them less “liberty.” But what everyone clearly understood was that it was the king who had the legitimate power to make this determination.

    Then along came the Declaration of Independence and totally inverted the traditional relationship between government and citizen. The Declaration is truly the most radical document in political history. Its ideas and principles continue to threaten governments and political rulers 225 years after it was written.

    The Declaration pointed out that man’s rights do not come from government. Instead, rights exist independently of government. If government ceases to exist in a society, people’s rights do not cease to exist, because their rights preexist government.

    Where then do government’s powers come from? The powers come from the people because it is the people who bring government into existence. Government does not preexist the citizenry (and their rights); instead, the government exists by favor of the citizenry. Thus, whenever the people wish to dismantle or abolish government, it is their right to do so, since the existence of government depends on the will of those who bring it into existence — that is, the people.

    Those ideas are expressed in the Declaration: Men are endowed by their Creator (not by government) with certain unalienable rights, and whenever government becomes destructive of these rights, it is the right of the people to alter or abolish it and form new government.

    It is impossible to overstate the truly radical and revolutionary nature of this central idea expressed in the Declaration. Remember that for eons, the commonly accepted belief among people was that their government could rightfully do whatever it wanted to the citizenry and that the citizenry were duty bound to obey.
    Then along came Thomas Jefferson, the author of the Declaration, and said, No, it is government that is the servant and that takes orders from the citizenry, not the other way around.

    What were the rights to which the Declaration referred? Among them (not all were listed) are life, liberty, and the pursuit of happiness. Jefferson had taken the phraseology from the English philosopher John Locke, who had referred to “life, liberty, and property.”

    …Eleven years later — 1787 — the people of the United States brought into existence the Constitution, which in turn brought into existence the federal government. Therefore, there is no question, at least here in the United States, that the federal government is entirely a creation of the people, that the people preexist the government, and that the people have the right to dismantle it, abolish it, reform it, or limit its powers in any way they see fit.”

    If we are in agreement that it’s an individual’s right and responsibility to protect oneself and one’s property as being “Unalienable” then on to the next point: ACCESS & RESTRICTIONS on Ownership.

    As for criminals and non-law abiding citizens acquiring guns I’m not sure your assumption is correct that folks like us are the “MAIN” source of gun supply to the criminals. Many are acquired through various “other” crimes and illegal activities: robberies, etc. It would be interesting to see the data/statistics.

    With the GOAL being to prevent mass shootings like the Tucson tragedy you referenced. We are both in agreement these need to be prevented!

    In regards to CRIMINALS and CRAZIES getting guns what specifically would you like to see proposed in-order to keep guns out of the hands of the criminals and crazies, not including the changing of our constitution? I agree the process of Amendments exist to accomplish that end.

    I am very curious as to this issue. I totally agree with you that LIFE supercedes someones right to Gun ownership as you mentioned with the heinous murder of Christina Green in Tucson. You obviously can’t pursue happiness if you are dead. However, there are situations where the presence of a gun may preserve the unalienable right to life too.

    I think that we need to be very careful and tread lightly in the “scope and power” that we subjugate to government in regards to any of our rights including our 2nd Amendment right. Historically, most governments’ track records are not very good in this regard.

    The challenge I presume will be to accomplish that end without infringing upon law abiding citizens rights.

    In my opinion the means may not justify the ends, but I am very curious as to how the goal we both seek can be accomplished?


    • Winston,

      I must say it is nice to debate an issue without it degrading to the lowest common denominator. Thank you for that. I think when people are able to look past the particular rhetoric of a subject, they find the differing side of most issues are not as far apart as the media and talking heads like us to believe.

      I take your point with Mr. Hornberger’s paper. I do not have an issue with our government working for the people, as long as “the people” is limited to those of us that draw breath and not the corporate citizens the Supreme Court declared in SANTA CLARA COUNTY V. SOUTHERN PACIFIC R. CO.

      To answer your question on changes to the Second Amendment, first, I think the reference to militia is dated and not longer required. Much the same way as the whole 3rd Amendment is dated in today’s world.

      Next I would phrase it something like this:

      “All government bodies within the United States are prohibited denying an individual citizen the right to own a gun, with the following exceptions, citizens convicted of a felony, citizens deemed incapable of of legal responsibility as defined by law. The various state governments are required to record and compile data concerning person deemed legally incompetent and coordinate data with other states. Records compiled for this purpose are not to be used for any other purpose whatsoever and must remain confidential and private. Gun ownership cannot be transferred to any person not meeting these requirements under any circumstances. Only citizens of the United States have the right to bear arms with its boarders.”

      I would define legal competences in the same way a person is declared either competent or not in a court of law and require mental health professionals to report persons incompetent to the state for the purpose of restricting gun ownership. Much the same way healthcare professionals are required to report people with a communicable disease to the CDC.

      That is something off the top of my head that would be an improvement, It limits the authority of the government bodies while defining the responsibility of the citizen. I for one, believe that with rights come responsibilities. Of course, that is just one idea and I am open to modify my opinion based on reasoned debate.

      I agree that there are times when owning a gun has saved lives but no right is absolute. Take freedom of speech, you have the right to say most anything you wish, but when you scream “Fire!” in a crowded movie theater, you have committed a crime. Free speech is limited to speech that does not cause others direct harm. Yes, gun ownership is different but if we place limits on a right like free speech, we can also place limits, such as who can own a gun or what guns are allowed, on the right to own a gun.

      If you look at the patchwork of gun laws, place like Georgia (where I am from and love) have lax regulations regarding the transfer of guns purchased legally in the state so many are purchased for the sole purpose of selling and exporting to states like New York. I just think that needs to change. We have cases where on kid of 20 purchases dozens of gun per month and sells them to people out of state. I do not want my state to have any negative role to play in the crowded world of New York City.

      It is off topic for this debate but I would be interested in knowing your views on the rights subjugated to the federal government after the attack on 9/11. I tend to agree with you the our constitution limits government and we need to be careful as to what power we grant that government. It is my feeling that the power of the Patriot Act go way too far. Perhaps we can correspond via other means to keep this debate on topic.


  7. Winston,

    I must say I rarely receive such a thorough response. I will have to take issue with you on a few points but that in no way diminishes my respect for your argument.

    First, our Founding Fathers intended us to change the Constitution. That is why they included Article 5. Simply put, we would not have the Bill of Rights if the Constitution did not change from time to time.

    Second, you are exactly right that the Supreme Court did incorporate the Second Amendment to mean individuals have a right to own a gun. One thing the Court cannot do is modify the text of Constitution, it give the right of regulation to the State and takes it away from the federal government regarding gun regulation.

    Third, you seem to think I advocate taking guns away from the average citizen, as a gun owner, I can assure you that is not the case. My point is we have weapons today that are capable of killing scores of people. Perhaps we need to look at how we regulate gun ownership. While it does nothing to keep a criminal from getting a gun, it might keep someone mentally imbalanced from getting one. Basically I see it this way, my right to own a gun ends at your right to not be shot with my gun. Of course, that assumes you do not break into my home. At that point, the only real right you have is to pick the spot where you bleed on my carpet.

    There is no question with over 18,000 murders a year, we live an a country with some violent people in it. And true enough that guns end up in the hands of criminals. Ever wonder how? Mostly by people buying guns, then selling them to the criminal. You may not wish to do anything about that, but I do.

    Two basic areas need addressing, how to keep mentally imbalanced people from getting a gun and how to keep criminals from getting them.

    My whole point in the post is take the Amendment in total. You cannot simply pick and choose the words you like and ignore the rest.

    Why are you pulling issues regarding the Deceleration of Independence with your reference to “unalienable”? Our law and our rights is not based on it, it is on the Constitution.

    Again, I am not advocating a ban on gun ownership, I want to protect my right to own one by finding ways to prevent nuts like the guy in Arizona and the student at Virginia Tech from getting their hands legally on a weapon that puts my family at risk for simply going to the local shopping center. You seem to have great sympathy for the victims of the Holocaust, where is your sympathy for 9 year-old Christina Green? In case you forgot, she is the little girl killed in Arizona. This guys right to own a gun is nothing compared to her right to a life.

    Lastly, do not make the mistake of thinking I am some shrinking violet. I served this country for many years. I know what it means to sacrifice to protect a nation.


  8. Great write-up until the last paragraph….and then you BLOW IT!! Nice try though. Sorry brother but the Constitution is what it is. The reason it was written simply was to prevent folks like you from saying it needs to be changed.
    Despite your historical perspectives on militias, the Supreme court has fortunately ruled that the 2nd amendment is an individual right in Keller vs. DC.
    Before you start advocating that we change our constitution and our 2nd amendment rights you may want to familiarize yourself with the fact that “Personal Protection” has been since the founding of this nation and will continue to be a “personal responsibility”.

    “Recidivism” rates across the country are very high. (See below)

    Two studies come closest to providing “national” recidivism rates for the United States. One tracked 108,580 State prisoners released from prison in 11 States in 1983. The other tracked 272,111 prisoners released from prison in 15 States in 1994. The prisoners tracked in these studies represent two-thirds of all the prisoners released in the United States for that year.

    Rearrest within 3 years:

    * 67.5% of prisoners released in 1994 were rearrested within 3 years, an increase over the 62.5% found for those released in 1983
    * The rearrest rate for property offenders, drug offenders, and public-order offenders increased significantly from 1983 to 1994. During that time, the rearrest rate increased:

    o from 68.1% to 73.8% for property offenders

    o from 50.4% to 66.7% for drug offenders

    o from 54.6% to 62.2% for public-order offender

    The rearrest rate for violent offenders remained relatively stable (59.6% in 1983 compared to 61.7% in 1994).

    Re-conviction within 3 years:

    * Overall, re-conviction rates did not change significantly from 1983 to 1994. Among, prisoners released in 1983, 46.8% were re-convicted within 3 years compared to 46.9% among those released in 1994. From 1983 to 1994, re-conviction rates remained stable for released:

    o violent offenders (41.9% and 39.9%, respectively)

    o property offenders (53.0% and 53.4%)

    o public-order offenders (41.5% and 42.0%)

    * Among drug offenders, the rate of re-conviction increased significantly, going from 35.3% in 1983 to 47.0% in 1994.

    Returned to prison within 3 years:

    The 1994 recidivism study estimated that within 3 years, 51.8% of prisoners released during the year were back in prison either because of a new crime for which they received another prison sentence, or because of a technical violation of their parole. This rate was not calculated in the 1983 study.

    BJS Sources:
    Recidivism of Prisoners Released in 1983, April, 1989
    Recidivism of Prisoners Released in 1994, June, 2002.

    Additionally , it is frightening to see just how many convicted felons live amongst us in our neighborhoods.

    See Convicted felons near where you live here: http://www.felonspy.com/search.html

    Just type in a street name at the top of the form & your whole neighborhood map will pop up.

    Every place you see a RED BALLOON or RED THUMB TACK is the home of a “Convicted Felon!!

    Just place your mouse over an icon & not only will the name come up, but also the crime they were convicted of.

    If it’s your belief that the reason we form a governments/militias is to protect us then there are 6 million Jewish Souls (Total 12 million souls WWII killed by the Nazi’s) that would probably disagree with you….because their Nazi Fascist Government didn’t do a very good job protecting them now did they?

    Additionally, see below website for list of gov’t/dictator sponsored Genocides in 20th Century. Many Gov’ts TRACK RECORDS aren’t very good!

    http://www.scaruffi.com/politics/dictat.html

    If you feel gov’t will protect you then by all means go ahead and subvert your unalienable right of personal responsibility for personal protection.

    When your local government like many across the country goes broke or bankrupt and can’t afford to pay for their police force and layoff 50% of the police…..who’s responsibility will it be for your protection then?

    What if “THE” gov’t is the problem like it was when our nation was founded?

    UNALIENABLE means just that….that no one can take it away or be more responsible for it than you….not even a or any gov’t!

    In Review the definition is: Unalienable – incapable of being repudiated or transferred to another; “endowed by their Creator with certain unalienable rights”.



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