Category: Second Amendment

The idea that the Second Amendment only protects what our forefathers called “select militias,” which receive weapons and training from the government (like today’s National Guard), has been so thoroughly debunked over the past few decades I can’t believe that the subject still comes up.  If the Supreme Court’s belated ruling that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” in DC v. Heller didn’t put the issue to rest, I don’t know what will.

Just for review, the Second Amendment states:  “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.”  The U.S. Constitution repeatedly refers to three distinct political entities: the people, the States and the United States.  The language of the Second Amendment clearly states that it is the right of the people to keep and bear arms which is protected.

The syllabus from the Heller decision concludes: “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Still, you occasionally hear grumblings from disgruntled progressives who just can’t believe that their collective interpretation, which held sway in academia and the media for much of the twentieth century, has been swept into history’s dustbin.  One such grumbling came as a guest column in last Sunday’s Cedar Rapids Gazette entitled “‘Well-regulated militia’ is nowhere in sight.”  Since the author, Bob Elliott, is a former Iowa City councilman, perhaps it’s not surprising that civilian arms bearing doesn’t sit well with him.

Mr. Elliott begins his piece writing about several recent shootings in Cedar Rapids which he alleges were carried out by “proud gun-wielding Americans, who apparently believe they represent something of a militia.” I’m not sure about all the crimes Mr. Elliot is referring to but the three suspects arrested in the Kirkwood Apartment shootings were young punks with prior criminal records who were looking for drugs.  I’m going to go out on a limb and say none of them were weapons permit holders or dues-paying members of the NRA.

Mr. Elliott then gets into the meat of the Second Amendment.  “You may have noticed that the 2nd Amendment’s first two phrases focus on the necessity of a well-regulated militia,” he writes. “I believe the Founding Fathers envisioned an organized and well-regulated militia.”  But did the Founding Fathers define “well-regulated” to mean being administered by a government bureaucracy as we do now?  In their day, “well-regulated” often meant “well-trained.”

Attorney Daniel J. Schultz explains:  “[C]omparison of the Framers’ use of the term ‘well regulated’ in the Second Amendment, and the words ‘regulate’ and ‘regulation’ elsewhere in the Constitution, clarifies the meaning of that term in reference to its object, namely, the Militia. There is no doubt the Framers understood that the term ‘militia’ had multiple meanings. First, the Framers understood all of the people to be part of the unorganized militia. The unorganized militia members, ‘the people,’ had the right to keep and bear arms. They could, individually, or in concert, ‘well regulate’ themselves; that is, they could train to shoot accurately and to learn the basics of military tactics.

“This interpretation is in keeping with English usage of the time, which included within the meaning of the verb ‘regulate’ the concept of self- regulation or self-control (as it does still to this day). The concept that the people retained the right to self-regulate their local militia groups (or regulate themselves as individual militia members) is entirely consistent with the Framers’ use of the indefinite article ‘a in the phrase ‘A well regulated Militia.'”

Mr. Elliott continues his guest column with, “I can’t believe [the Founding Fathers] had in mind more than 300 million people running around with weapons ranging from small caliber revolvers to assault weapons.”  I’ll ignore for the moment the Goldilocks syndrome that Mr. Elliot, like so many gun prohibitionists, apparently suffers from (“This gun is too big!  This gun is too small!”) and focus on his first point in that sentence.

While the Founders may or may not have envisioned a nation with the staggering population that we now have, they certainly believed that the militia comprised the bulk of whatever that population may be.  Consider the words of George Mason, the “Father of the Bill of Rights,” who said, “[W]ho are the militia? They consist now of the whole people, except a few public officers.” [Emphasis added.] 

If Mr. Elliott is worried that the Founders wouldn’t appreciate Americans “running around” with so-called “assault weapons” that cosmetically resemble military rifles, he may want to read the words of “A Pennsylvanian,” Tench Coxe, who said that “every […] terrible implement of the soldier, [is] the birthright of an American.”

The simple fact is that gun control laws have been loosened in the past decade or so and record numbers of Americans are now buying, keeping and carrying firearms and yet violent crime rates and accidental gun deaths keep dropping to historic lows.  It seems that “We the Militia” are pretty well self-controlled (or “well-regulated) to me.

Here is Rep. Horbach’s (R-Tama) impassioned closing remarks on the House floor for the RKBA amendment HJR 2009.

Two good gun bills came up for debate this week in the Iowa House of Representatives.  One was a proposed “Stand Your Ground Law” and the other would add a right to keep and bear arms provision to the state constitution.  Both were passed out of committee as watered down versions but the full house was allowed to vote on the original strongly-worded versions of both.

Not having the votes to stop the bills, House Democrats walked out in protest. Fellow over-worked blogger stranded in iowa chronicles the statehouse soap opera in more depth here.  After their hissy fit Democrats returned and graciously allowed the legislative sausage press to resume operation.  Both pro-gun bills passed in the House largely along party lines.

The “Stand Your Ground Law,” House File 2215, “provides that a person may use reasonable force, including deadly force, if it is reasonable to believe such force is necessary to avoid injury or risk to one’s life or safety or the life or safety of another” and that “a person who is not engaged in an illegal activity has no duty to retreat from any place where the person is lawfully present before using force.”  The bill also provides that a person who uses reasonable force would be immune from any criminal prosecution or civil action for using such force. 

Arguing against the bill Democrats fell back on the “wild, wild west” scenarios that they also said would materialize if Iowa passed the “shall issue” weapons permit law in 2010.  House Democratic Leader Kevin McCarthy had this to say of the brainless savages he represents: “Maybe loading groceries in the back of a car in the Walmart parking lot, you look over, somebody’s taking a sack out — boom!”  The bill’s sponsor Representative Matt Windschit countered, ““I trust Iowans.  I believe in them. Let’s give them an opportunity to defend themselves without the fear of frivolous prosecution.”

H.F. 2215 passed 60 to 38.  It now advances to the Democrat-controlled Senate where it’s future is murky.

Representatives voting FOR the bill were:

Alons Anderson Baltimore Baudler Brandenburg Byrnes Chambers Cownie De Boef Deyoe Dolecheck Drake Forristall Fry Garrett Grassley Hagenow Hager Hanusa Heaton Hein Helland Horbach Huseman Iverson Jorgensen Kaufmann Klein Koester Lofgren Lukan Massie Miller, L. Moore Olson, S. Paustian Pearson Pettengill Quirk Raecker Rasmussen Rayhons Rogers Sands Schulte Schultz Shaw Smith, J. Soderberg Sweeney Taylor, J. Tjepkes Upmeyer Van Engelenhoven Vander Linden Wagner Watts Windschitl Worthan Mr. Speaker Paulsen

Representatives voting AGAINST the bill were:

Abdul-Samad Berry Cohoon Gaines Gaskill Hall Hanson Heddens Hunter Isenhart Jacoby Kajtazovic Kearns Kelley Kressig Lensing Lykam Mascher McCarthy Miller, H. Muhlbauer Murphy Oldson Olson, R. Olson, T. Petersen Running-Marquardt Smith, M. Steckman Taylor, T. Thede Thomas Wenthe Wessel-Kroeschell Willems Winckler Wittneben Wolfe

The proposal to amend the Iowa Constitution, House Joint Resolution 2009, would add the following language to the state’s Bill of Rights:

The right of the people to keep and bear arms, as herein expressed, shall not be infringed. The right of an individual to acquire, keep, possess, transport, carry, transfer, and use arms to defend life and liberty and for all other legitimate purposes is fundamental and shall not be infringed upon or denied. Mandatory licensing, registration, or special taxation as a condition of the exercise of this right is prohibited, and any other restriction shall be subject to strict scrutiny.

H.J.R 2009 passed 61-37.
 
Representatives voting FOR the bill were:

Alons Anderson Baltimore Baudler Brandenburg Byrnes Chambers Cownie De Boef Deyoe Dolecheck Drake Forristall Fry Garrett Grassley Hagenow Hager Hanusa Heaton Hein Helland Horbach Huseman Iverson Jorgensen Kaufmann Klein Koester Lensing Lofgren Lukan Massie Miller, L. Moore Olson, S. Paustian Pearson Pettengill Quirk Raecker Rasmussen Rayhons Rogers Sands Schulte Schultz Shaw Smith, J. Soderberg Sweeney Taylor, J. Tjepkes Upmeyer Van Engelenhoven Vander Linden Wagner Watts Windschitl Worthan Mr. Speaker Paulsen

Representatives voting AGAINST the bill were:

Abdul-Samad Berry Cohoon Gaines Gaskill Hall Hanson Heddens Hunter Isenhart Jacoby Kajtazovic Kearns Kelley Kressig Lykam MascherMuhlbauer Murphy Oldson Olson, R. Olson, T. Petersen Running-Marquardt Smith, M. Steckman Taylor, T. Thede Thomas Wenthe Wessel

Since it amends the state Constitution, the bill must pass BOTH houses of the legislature during this session AND during next years session.  It would then have to be approved by Iowa voters.
 
If you’re interested in these bills I would encourage you to sign up for the Iowa Firearms Coalition’s email alerts here.  They will send you timely updates on these and other Second Amendment issues in Iowa as well as offering an online resource to quickly and easily contact your elected officials when needed.

From Des Moines Gun Rights Examiner (Iowa Firearms Coalition President Sean McClanahan):

HSB18 passed out of the [House Public Safety Committee] with a vote of 14-5, so it now goes to the floor of the full Iowa House of Representatives for debate. HSB18 is a reform to the Emergency Powers Act; if passed, HSB18 would make it illegal for a citizen to be removed of his or her ammunition or firearms during a state of emergency, and it would protect a citizen’s right to transport and carry firearms during that time. Essentially, it prevents another “Katrina aftermath” from happening in Iowa.

The vote was almost completely along party lines. Representatives R. Olson and Swaim were not present. All of the Republicans voted for the passage of HSB18, while all of the Democrats – with one exception – voted against passage. The lone Democrat who voted to protect the rights of Iowa citizens who own firearms was Representative Wolfe.

The final tally:

Voting AYE – to protect the rights of citizens:

Baudler

Shaw

Alons

Brandenburg

Fry

Hagenow

Klein

S. Olson

Rayhons

Sands

Tjepkes

Windschitl

Wolfe

Voting NAY – to allow your rights to be removed:

Kressig

Abdul-Samad

Berry

Gaines

Muhlbauer

Absent:

R. Olson

Swaim

Why it’s Needed

In previous columns we have examined how the Second Amendment protects an individual right. We looked at how “the militia” referenced in the amendment referred to all law-abiding citizens. Although it is clear that the Founding Fathers wanted an armed populace, our modern friends and neighbors may wonder why.

Besides the necessity of putting wild game on the table, the founders realized that the right to keep and bear arms gave the people a defense against various threats to their lives and liberty. Joseph Story, the famous jurist and Supreme Court Justice put it this way: “The importance of this article [Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.” I would add common crime to that list as well.

Admittedly the risk of foreign military invasion is pretty remote. Fortress America is protected by oceans on two sides and friendly neighbors to the north and south, but who knows what the future holds? Any nation foolish enough to send an invading army into the United States would be in for a fight. Even if they were able to defeat American military forces and capture certain areas, the armed citizenry would be able to conduct a campaign of guerrilla warfare against the occupiers. As Vietnam, Iraq, Afghanistan and numerous other examples have proven, armed civilians on their own turf are often harder to defeat than professional armies.

Thomas Paine: “[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property… Horrid mischief would ensue were the law-abiding deprived of the use of them.”

Domestic tyranny, unfortunately, may be a more likely threat than foreign invasion. Our founding fathers understood that an armed populace was the final, last ditch safeguard against government suppression of the people’s liberty, when all the other “checks and balances” had failed.

Joseph Story: “The right of the citizens to keep and bear arms has justly been considered, as the palladium [safeguard] of the liberties of a Republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them[.]”

Noah Webster: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. 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 pretence, raised in the United States.”

Thomas Jefferson: “And what country can preserve its liberties if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms.”

Defense against crime is probably the most relevant of these issues to modern day Americans. Police can’t (and in a free society shouldn’t) be everywhere. This means that the duty to protect the individual resides with the individual himself. Some places have recognized that fact while others have tried to hide from it.

John Jay: “Even if it was practicable, would it be wise to disarm the good before ‘the wicked cease from troubling?’” [citing Job 3:17]

A look at crime rates from around the country shows that areas with the most restrictive prohibitions on civilian gun ownership have the highest crime rates (e.g. Washington D.C.), while areas with the least restrictive gun laws have some of the lowest crime rates (e.g. Vermont). States that legally recognize the right to carry concealed firearms, for instance, have 26% lower total violent crime and lower rates of murder by 31%, robbery by 50%, and aggravated assault by 15%, than states that do not recognize the right to carry.

America’s crime rates have remained low while the number of guns in private ownership has greatly increased and the number of licensed concealed carriers has also increased. Compare that to England and Australia which have seen their violent crime rates (including gun crimes) skyrocket after passing near-total gun bans. According to the U.N., these two countries now have higher violent-crime rates than America. Noted crime researcher Professor John Lott summed it up succinctly in the title of his book, “More Guns, Less Crime.”

The Second 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.” The militia that the framers referred to was all citizens capable of fighting. The amendment therefore protects an individual right of the people to keep and bear arms, which is necessary to defend themselves from crime, invasion and tyranny.  Now, just as then, that’s important.

End of series.

An Individual Right

In the previous post we dispelled the idea that “the militia” referred to in the Second Amendment means a “select militia,” such as today’s National Guard. Instead the “general militia” that the Constitutional framers referenced meant all citizens capable of bearing arms for defense.

Although both sides of the current gun debate could probably squabble over the definition of “the militia” indefinitely, the Founding Fathers left little doubt as to what they meant. It is clear that the right they referred to was an individual right. The following quotes should further dispel any doubts:

Patrick Henry: “The great object is that every man be armed… Every one who is able may have a gun.”

Thomas Jefferson: “No free man shall ever be debarred the use of arms within his own lands.”

Zachariah Johnston: “The people are not to be disarmed of their weapons. They are left in full possession of them…”

Samual Adams: “The said Constitution [shall] be never construed to authorize Congress […] to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

James Madison: 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.”

Tench Coxe: “[T]he people are confirmed by the next article (of amendment) in their right to keep and bear their private arms.”

Akhil Reed Amar (Modern Yale Law School Professor): “The ultimate right to keep and bear arms belongs to ‘the people’, not the ‘states.’ As the language of the Tenth Amendment shows, these two are of course not identical and when the Constitution means ‘states,’ it says so.” [See below.]

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [Emphasis added.] The people and the States are two separate entities. The United States is a third.

Its ridiculous to think that “the people” referred to in the Second Amendment actually means “the States.” It is the same “the people” who have the right to peaceably assemble under the First Amendment. It is the same “the people” whose “right […] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is guaranteed in the Fourth Amendment. If we apply the gun-prohibitionists’ “the people means the States” logic to the other amendments in the Bill of Rights, it becomes clear how absurd their logic is.

All this led the U.S. Supreme Court to conclude in the 2008 landmark Heller decision: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”