THE SECOND AMENDMENT TO THE CONSTITUTION FROM THE PERSPECTIVE OF A STRICT CONSTRUCTIONIST

THE SECOND AMENDMENT TO THE CONSTITUTION FROM THE PERSPECTIVE OF A STRICT CONSTRUCTIONIST

 

By

 

Dr. Jimmie R. Applegate

 

 

Constitutional Conservatives believe the “Founding Fathers” of the United States of America were guided by divine wisdom when they wrote the Declaration of Independence, the Constitution and the Bill of Rights.  The Bill of Rights is the first ten amendments to the Constitution ratified in 1791 at the insistence of the Anti-Federalists who demanded the Constitution more clearly emphasize the endowed rights of individuals.  Constitutional Conservatives believe in the sanctity of these documents; that is, the documents mean exactly what they say, and that any contemporary interpretations must consider events, conditions and arguments made at the time they were ratified.  The 2^nd Amendment is a case in point.

 

The 2^nd Amendment is two lines long.  It is concise and to the point—“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”.  This sounds like a simple statement meaning having and holding arms is an endowed right of the people that is not to be violated.

 

Unfortunately, all is not always as simple and clear cut as it appears.  So the remainder of this paper is a brief discussion of the background, the situation, the events and the discussions resulting in the ratification of the Constitution and Bill of Rights in 1791.  The purpose of this section is to set the stage, describe the scenery and consider dialogue leading up to ratification.  In other words, the purpose is to interpret these formal events from the perspective of a Constitutional Conservative to justify a strict construction of the 2^nd Amendment.  The author contends the original intent of the 2^nd Amendment was to codify the right of individuals to keep and bear arms of sufficient quality and quantity to, if necessary, overthrow a government that was not functioning of, by and for the people collectively and individually.

 

By the late 1700’s the English colonists in the New World had a long history of keeping and bearing arms dating back to 880 A.D. during the rule of King Alford.  Threehundredfifty years later most Englishmen were accustomed to being armed voluntarily, either for self- protection or by a king’s decree.  So it is not surprising that by the middle 1500’s armed citizens were given the name “militias”.  The militias included all able bodied men.  They were not conscripted, not enlisted, not drilled and certainly not professional soldiers.  They were nothing more than citizens who kept and bore arms.

 

Disagreements over the power of kings versus that of Parliament resulted in conflict.  When the citizen militias refused to follow the orders of Parliament, Parliament created the “New Model Army” to replace the ineffective militias 130 years before the Revolutionary War and 146 years prior to the ratification of the Constitution.  Militias composed of all able bodied males just because they were citizens living in a specific part of the realm and who coalesced primarily for protection were replaced by professional soldiers who were conscripted, paid and trained as men of war. 

 

The preceding narrative set the stage for the Revolutionary War and the role militias played in English and Colonial American history.  It also describes the general understanding of their role in protecting liberty and freedom.  On April 18, 1775 at Lexington Green the shot “heard round the world” most likely was fired by a Minuteman.  The Massachusetts’s colony had taken the lead in creating an elite group of trained soldiers ready to engage an enemy at a minute’s notice, thus the name Minutemen.  It was a small group of “professional” Minutemen who faced the British at Lexington Green.  The Minutemen were an elite, well trained and armed force, whereas the militias remained as a rag tag group of untrained citizens.  These differences were exacerbated during the Revolutionary War as the fighting forces became more professional.  This was well known to the Founding Fathers and the framers of the Constitution.

 

The endowed right of citizens to keep and bear arms was the subject of many verbal and written comments during the ratification debates.  In Letters from the Federalist Farmer to the Republican, Richard Henry Lee argued that to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.  Patrick Henry argued “the great object is that every man be armed…Everyone who is able may have a gun”.  These same Anti-Federalists prevailed in the argument to add a “Bill of Rights” to the Constitution to include the 2^nd Amendment guaranteeing the right to keep and bear arms.  The Anti-Federalists were not alone in their argument.  The Federalist, Daniel Webster, also argued “the real deterrent to governmental abuse is an armed population”.   James Madison, another Federalist, agreed “the real deterrent of governmental abuse is the armed population”.  A foremost Federalist, Alexander Hamilton, said, “the people retained the right to defend their political rights and possessed the means to do so” if their elected representatives failed them.  Both Anti-Federalists and Federalists agreed the people had a right to be armed and, not only that, but an armed populace was critical to the preservation of liberty.  (See, The Federalist Papers)

 

The arguments in favor of allowing the people to keep and bear arms were reinforced again and again in the state Constitutional Conventions to ratify the Constitution.  For example New York, New Hampshire, Virginia, North Carolina and Rhode Island ratified the Constitution with the understanding the people had a right to keep and bear arms and that Congress would never disarm law abiding citizens.

 

In summary, when the Constitution was ratified in 1791 the common understanding of the word “militia” in the 2^nd  Amendment was all able bodied male citizens who resided in the same geographic division (underline added for emphasis).  For example, the words “populace”, “population”, “the whole body of people”, “citizens” and “everyone” were used time and time again in place of the word militia.  Once an understanding of what militia meant in 1791 from the perspective of a strict constructionist of the Constitution, it is easier to put the meaning of the word into the context of the time in which it was written.  And after all, that is the purpose of this paper.

 

I leave you with these final words:

·       from George Mason:  “I ask, sir, what is the militia?  It is the whole people …..”

·       from Alexander Hamilton:  “The best we can hope for concerning the people at large is that they be properly armed”.

·       from Samuel Adams:  “That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms”.

·       from Thomas Jefferson:  “No Free man shall ever be debarred the use of arms.”

·       from Noah Webster:  “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States”.

 

 

Author’s note:

The author quoted freely from Vandercoy, David E., The History of the Second Amendment, Valparaiso University Law Review, 1994; and The Federalist Papers.

                       

ARE YOU A CONSTITUTIONAL CONSERVATIVE?

Are You A Constitutional Conservative?

by

Dr. Jimmie R. Applegate

HYPOTHESIS     A Constitutional Conservative is a Strict Constructionist of the Constitution of the United States

ARGUMENT       During the late 1700’s debates regarding the Declaration of Independence, Articles of Confederation, the Constitution of the United States of America and the Bill of Rights, the roles of the people, the states and the central government were clarified.  The rights of the people, individually and collectively, were paramount and extensive rights were given to the states.  The rights of the central, or national, government were limited to those enumerated in the Constitution and Bill of Rights (Amendment 10).  This federal democratic form of government was a complete reversal of the European model of the sovereign right of kings.  The authors of the Federalist papers further clarified the inalienable rights of individuals.  Thus the model of the divine right of kingship was replaced by a form of government emphasizing rights of, by and for the people written “by the hand of divinity itself” (Alexander Hamilton, The Farmer Refuted 1775).

The Constitution and Bill of Rights of the United States of America are permanent documents to be changed only by amendments approved by the people (Article V).  These documents place strict limitations on the roles of the Legislative, Executive and Judicial branches of government.  These limitations mean legislators cannot pass legislation that violates the Constitution or Bill of Rights; for example, the passage of gun control legislation that violates the Constitution’s 2^nd Amendment’s right to keep and bear arms is unconstitutional.  Likewise, the Executive branch is required to enforce the laws of the land.  In fact the Presidential Oath includes these words, “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States” (Article II, Section 1).  When the chief law enforcement agencies declare “provisional unlawful waivers” to circumvent enforcing the laws regarding the presence of illegal aliens in the United States, that is a violation of law and of the President’s sworn duty to  “take care that the Laws be faithfully executed (Article II, Section 3).  Or when officers in the Executive branch confiscate earned wealth from some to “equalize” the position of others that is a constitutional violation regardless of what it is called.  It may be called a “right” or claimed that it is “fair”, but in reality it is stealing from “makers” to redistribute wealth to “takers” in exchange for power and votes.  The Estate Tax is a blatant example of “taxation without representation”.  It is outright confiscation of one’s personal property, on which taxes already have been paid, to impose another tax on it upon the owner’s death.  It is no wonder that when a property owner is taxed after death the confiscation of personal property is called a “Death Tax”.  The creation of an “inalienable entitlement right” mentality by such actions likewise is a potential violation because the increasing demand for entitlements results in increased taxation and other forms of property confiscation to redistribute wealth from those who worked to earn it to those who did not.

The members of the Legislative branch must reduce spending to balance the budget.  A necessary first step is to limit the national debt by refusing the demands of the Executive branch to raise the cap on the debt ceiling.  If the debt ceiling is not capped the inalienable rights of our children and grandchildren to their “life, liberty and the pursuit of happiness”—the key word  here is “pursuit”—as they desire will continue to be stolen to meet the current insatiable demand for additional revenue so we can maintain the good life at their expense.

The members of the Judicial branch are not immune.  Activist judges and attorneys who utilize the courts to interpret the Constitution to promote social and political philosophies are just as guilty of violating the Constitution as are the members of the other two branches of government.

Constitutional Conservatives believe in America.  They are Americans, the majority of who grew up and were educated in a “melting pot” America.  They are Americans, not “hyphenated” Americans.  They believe in one America, and the principles that made it exceptional.

SUMMARY           Constitutional Conservatives believe in the principle of government by and for the people.  They hold dear the principle of a small central government with powers limited by the Constitution.  They believe what is earned belongs to those who have worked to earn it, and that it is the property owner’s right to determine its disposition be he alive or upon death.  They believe in assuming responsibility for the consequences of what you do or do not do.  And Constitutional Conservatives believe in living within available revenue.  They believe we have a spending problem and not a revenue problem.  They oppose ever increasing forms of taxation, confiscation of private property, the forced redistribution of wealth and raising the debt ceiling.  Constitutional Conservatives are Strict Constructivists of the Constitution and Bill of Rights.  They believe these documents only can be changed by amendments approved by the people.

These principles are sacrosanct.  They are not to be interpreted, abolished or diluted to fulfill “politically correct” promises or actions.  And they are exceptional, just like America and Americans.