The Purpose of the Second Amendment
The President is ready to announce his plans to restrict gun ownership. Most likely, nothing the President proposes will do anything to stop a future Sandy Hook. We know the President understands he is putting Democrats in a terrible spot. We know because he did nothing after the Aurora, CO shooting in the midst of a political campaign. He had to wait so he wouldn’t spook voters.
Now he will put the Democrats on the line. Senators Baucus, Begich, Hagan, Johnson, Landrieu, and Pryor — all Democrats from very pro-second amendment states who are up for re-election in 2014 — will be in jeopardy when, not if, the President overreaches.
In all the talk that has happened and will happen, the press and the general public seem willing to ignore the actual purpose of the second amendment.
The amendment is not about sports. It is not about recreation. It is not about hunting. It is only partly about defending yourself from a criminal.
The second amendment is about ensuring a “free state.”
On April 19, 1775, British regulars marched on Lexington and Concord to seize the guns of American colonists that had been stockpiled in case of revolution.
It may be an abstract concept for us. It may be distant. But when the 1st Congress of the United States met in 1789, the memory of 1775 was fresh. More so, what they saw as an abridgment of their freedoms in 1775, they viewed as an abridgment of their freedoms going back to the Glorious Revolution of 1688.
Many historians have come to view the American Revolution as a conservative revolution. The revolutionaries believed they were protecting their English rights from the Glorious Revolution of 1688. They were, in effect, revolting to demand the rights they thought they already had as English citizens. It is why, for much of 1775, they petitioned the King, not Parliament, for help because they had, separated by distance and time, not kept up with the legal evolution of the British constitutional monarchy in relation to Parliament. The colonists believed themselves full English citizens and heirs of the Glorious Revolution.
One of the rights that came out of the Bill of Rights of 1689 in England following the Glorious Revolution was a right to bear arms for defense against the state. The English Bill of Rights accused King James II of disarming protestants in England. That Bill of Rights included the language “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”
The Americans, however, saw the British government, via Parliament, begin curtailing the rights of the citizenry in the American colonies. When they formed the federal government with ratification of the Constitution, the colonists, now Americans, were deeply skeptical of a concentrated federal power, let alone standing armies to exercise power on behalf of a government. This is why, originally, the colonists chose to require unanimity for all federal action under the Articles of Confederation that the Constitution would replace. Likewise, it is why many early state constitutions gave both an explicit right to keep and bear arms, but also instructed that standing armies in times of peace should not be maintained.
Prior to the Civil War, the Bill of Rights only applied to the federal government and that first Congress dropped references to “as allowed by Law” that had been in the English Bill of Rights. The Founders intended that Congress was to make no law curtailing the rights of citizens to keep and bear arms.
The 2nd Amendment, contrary to much of today’s conversation, has just as much to do with the people protecting themselves from tyranny as it does burglars. That is why there is so little common ground about assault rifles — even charitably ignoring the fact that there really is no such thing. If the 2nd Amendment is to protect the citizenry from even their own government, then the citizenry should be able to be armed.
There are plenty of arguments and bodies to suggest that we might, as a nation, need to rethink this. The Founders gave us that option. We can amend the Constitution.
In doing so, we should keep in mind that in the past 100 years Germany, Italy, Russia, Japan, China, and other governments have turned on their people at various times and, in doing so, restricted freedoms starting often with gun ownership. You may think a 30 round magazine is too big. Under the real purpose of the second amendment, a 30 round magazine might be too small.
Regardless, as the President announces how he will curtail the freedoms of the second amendment, we should remember Justice Robert Jackson’s opinion in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.