DRAFT: That Silly Ol' Second Amendment - So Obsolete that Only a Gun Fetishist Could Love It!

    When I posted my article yesterday about the dismal record of the Ninth Circuit Court of Appeals in terms of judicial activism, and the rough handling their decisions tend to receive by the Supreme Court, I expected to take some flak. I figured that the most vitriolic criticism would come from the left. After all, the default debating style of the left is name-calling and claiming that anyone taking an opposing position is a liar, malicious, stupid and (if they can find a pretext to work this in) a racist. 

    I wasn't disappointed.

    After posting on other sites for the past few years, and keeping up with the news, I'm as familiar as everyone else with the paranoid leftist mindset that anyone who disagrees with them must be evil. And I know that they argue by screaming and hurling insults the same way that caged monkeys throw their feces at passersby.

    But there was one respondent - Dale Ruff - who clearly strongly disagreed with everything I said, and yet posted several responses that were reasonably civil for someone on the left. Oh, sure, he accused me of writing garbage and distorting the truth about the Ninth's record. He also informed me that I was repeating a lie concocted by President Trump and Sean Hannity, but he was generous enough to say that I had "foolishly believed" what those two nefarious individuals said. So I'm not evil, just really stupid.

    I honestly have no idea what I was duped into believing by the Trump/Hannity cabal. I admit that I support President Trump and agree with most of what Hannity says. However, I have practiced law since 1997. Since 2001, my practice has focused exclusively on criminal appellate law, and I am admitted to practice before the Tenth, Eighth, and Seventh Circuit courts of appeal. I have never had the dubious pleasure of appearing before the Nutty Ninth.

    The point is that I do know how federal appeals courts are supposed to decide cases. And I don't really expect to ever depend on Trump or Hannity for my understanding of legal issues.

    Anyway, as it always seems to do when courts and the Constitution are the topics, the Second Amendment popped up. Dale opined that judges who are "strict constructionists" are really the bad guys who legislate from the bench. The evidence he offered to support that view was that the constructionists have conspired to pretend that the Second Amendment was written and ratified to grant rights that don't really exist - the individual right to bear arms, the right to hunt, and the right of "individual protection," by which I assume he meant self-defense."

    In practicing criminal law, I have had clients that would have frightened Dracula into wetting himself. Since most of those individuals are armed whenever they are not in custody, I have had a fair amount of exposure to Second Amendment law. As most of you know, it says nothing about a right to hunt,  the right to self-defense, or any other specific activity for which one can use a firearm.

   The truth is that the Second Amendment doesn't "grant" a single right. The Framers did not believe that rights were not the property of the government to bestow or withhold; they were a natural human birthright. That's why the amendment states that "the right of the people to keep and bear arms shall not be infringed." They were saying that free people had an inherent right to possess guns and to use them for any lawful purpose.

    Of course, individual freedom makes leftists uneasy, since they are most comfortable in a collective hive-mind environment. They don't like the idea that someone can speak, or possess firearms or engage in commerce, and can tell the government to go pound sand.

    That's why they've argued since at least the late 1960s that the right to bear arms under the Second Amendment's is limited to members of a "well-regulated militia," under government control. Not just "government" control, according to Dale, but congressional control. In other words, the same men who drafted the marvelous document intended to preserve individual liberty by limiting the authority of a central government suddenly did an about-face and gave that same government control over every firearm within the country's borders.

    When I tried to explain to Dale the intent of the Framers when they included the amendment, he of course vehemently disagreed - no big surprise. And he "proved" that he was right by tying together Article I, Section 8, Clauses 15 and 16 in the Constitution and the Second Amendment. Not just tying them together - he insisted that the Second Amendment's "grant" of the right to bear arms extended only to service in the militia and was completely under the control of Congress.

    Article I, Section 8 is where congressional powers are enumerated. It gives Congress the authority to call out the militia solely in cases of insurrection or foreign invasion. It gives Congress the authority to "provide for" the arming of the militia. According to Dale, this clearly proved that control of the guns was in the hands of Congress.

    If you are largely ignorant about constitutional law and history, and the views of the Founding Fathers, that claim might have a kind of superficial plausibility, if you didn't think about it too hard. And I should make clear the fact that I am not bashing Dale. His arguments were pretty standard talking points for the gun control crowd, and were not by a long shot the silliest ones I've heard. But they were bald conclusory and incorrect statements, entirely unsupported by any evidence other than Dale's opinion, which he referred to as "analysis."

    He either didn't notice or did not understand the Section's clear statement that control of the militia was divided between Congress and the State that supplied the troops. That alone should tip off the careful reader that congressional authority to "provide for" the arming of the militia means that if Congress calls them out, then Congress is responsible for making sure that they are adequately equipped.

    "Provide for" means that Congress can raise the money necessary to arm and equip the troops that it is sending into the field, the rationale being that since the militia is operating in service to the nation and not its home state, then the nation should pick up the tab. Other sections of Article I give Congress the power to raise revenue; the relevant clauses of Section 8 merely make it clear that Congress can raise money for the specific purpose of financing the summoning, arming and deployment of the militia. It is as unrelated to the Second Amendment as a mollusk is to a mammoth.

    The most critical issues in a Second Amendment debate are what the Framers meant by "well-regulated militia," and whether they believed in an individual right to keep and bear arms without regard to service in the militia. Fortunately, the Framers were highly intelligent and often brilliant men, most of them superbly educated, either formally or by their own voracious reading and desire to learn.

    They all understood that governments work tirelessly to extend the scope and extent of their power, and that the price of each increase in governmental power was a corresponding incremental loss of individual liberty. The Constitution was never intended to grant rights to the people; its purpose was to limit the growth of the federal government by an explicit enumeration of the things that the government was allowed to do.

    Many of the Framers were prolific writers - letters, journals, newspaper articles and essays written at the request of various institutions and individuals. So it is not necessary to guess what they thought; we can see that in their own words (any emphases in bold face are mine):


George Washington, Virginia

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.”


Thomas Jefferson, Virginia:

 “Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they. . . encourage (rather than) prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.”


James Madison, Virginia:

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.”


George Mason, Virginia:

“[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised. . .to disarm the people; that it was the best and most effectual way to enslave them. . ."


“That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state.”


Samuel Adams, Massachusetts:

“The said Constitution [shall] be never 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.”


Alexander Hamilton, New York:

“(A government army) can never be formidable to the liberties of the people while there is a large body of (armed) citizens, who stand ready to defend their rights and those of their fellow citizens.”


Thomas Paine, Pennsylvania:

“[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.”


Noah Webster, Pennsylvania:

“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 . . . because the whole body of the people are armed . . .”


Richard Henry Lee, Virginia:

“A militia when properly formed are in fact the people themselves . . . and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms and be taught alike, especially when young, how to use them…”


Tench Coxe, Pennsylvania:

“Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . 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 ever remain, in the hands of the people.”

“. . . the people are confirmed by the next article (of amendment) in their right to keep and bear their private arms.”


Zachariah Johnson, Virginia:

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


    Of course the left doesn't really care what the Constitution says or why the Framers put the things in it that they did. If there is something there that they don't like - such as clauses designed to preserve individual liberty - they come up with intellectually vacuous arguments such as, "Well, the Second Amendment was never intended to apply to the kinds of weapons available today!" 

   However, it is clear that the Framers wanted the people to have the power to resist with arms at least roughly equivalent to those the government would use to impose the tyranny of a would-be king or Caesar. Besides, that is as monumentally stupid a statement as claiming that the First Amendment's freedom of speech and press should not apply to the telephone, electronic communications or the Internet because they were not around when the First Amendment was ratified. 

   The left is basically a toxic stew comprised of wildly dissimilar - and often mutually hostile - factions compressed - like sludge - into an uneasy alliance. That means they have a tough time coming up with an intellectually persuasive philosophy or a set of generally agreed-upon values. One thing that they have in common is a sense of grievance that would be hilarious if it were not so socially destructive.

   That's why they are so quick to resort to personal attacks, name-calling, and physical intimidation of anyone who disagrees with them. They devalue and delegitimize opponents - excuse me; they don't have "opponents," only enemies, by responding to even mild disagreement by screaming that the other side is racist, homophobic, misogynist, transphobic, climate change "deniers," and of course fascists. I stand in awe of their lack of self-awareness when they are braying their outrage because someone is "intolerant," when they have elevated intolerance to an art form.

   There was a bit of that from Dale, who called people "gun zealots" and "gun fetishists" if they believed that the Second Amendment was intended to permit the bearing of arms by individuals. We also share the collective guilt for any blood that is spilled by someone using a gun. Pure, unreasoning emotion, completed unfettered by either logic or supporting fact.

    Dale also assured me that it actually doesn't matter what the Second Amendment actually means, or what the Framers intended. Why? Simple. It has been obsolete for "200 years," because we now have an army that does what the militia was intended to do.

    Actually, it's the National Guard who has supplanted the citizen militia, not the regular army, but no matter. The clarity with which the Framers stated their conviction that law-abiding individuals have the personal right as free people to possess arms, make the "obsolete" argument not just wrong, but irrelevant and meaningless. 

    His final point - one that I had been expecting - was to delegitimize anything the Framers did or intended because they (gasp!) owned slaves! Yes, many of them did. And many of them did not. But if we are going to start tarring people with that brush, to the extent of pretending that they were shot through and through with an evil so pervasive that they did nothing of value in any other aspect of their lives - which is an appallingly mindless argument - then let's be even-handed in our moral onanism.

    That means that we can trash all Muslims because their empire reaped huge benefits from the slave trade for more than a thousand years. Predations against the black tribes in much of sub-Saharan Africa by Muslim slave traders dwarfed anything that Europeans or Americans dreamed of doing. Slavery still persists today in parts of the Islamic world. 

    And let's not ignore the profit-seeking assistance white slave traders got from certain black tribes who regularly waged war on weaker neighbors for the express purpose of selling captives to the whites, as well as to the Muslims. In fact, one can make a strong argument that without the enthusiastic collaboration by African tribes, the slave trade could not have existed, because it would not have been economically viable.

    I don't have any urge to pretend that the Framers were gods or demigods, or even flawless humans. They were flawed mortal men - some were seriously flawed. It's true that some owned slaves, just as it's true that they did not question the wildly unequal status of men and women in their society. In both of those areas, they reflected the standards of their time, which is pretty typical of most humans.

    But the left's eagerness to bash the Framers is driven by the same motivation as its vicious treatment of anyone who opposes them today: if your opponent is irredeemably evil, then there is no need to treat them with respect or act in a spirit of compromise. They are so horrible that they have no right to have a voice in any issue and giving them one is actually a sellout and betrayal of the nobility of the views embraced by all of the "good" people.

    The most fervent anti-Second Amendment people see nothing wrong with confiscation by force of any weapon they deem to be too dangerous for an individual to possess. Besides, gun owners are evil; they are zealots and fetishists, right? So it would actually be okay to decide that they have no right to any other constitutional protections, and raid their houses to find and confiscate their guns, and anyone who gets killed in the process - well, no big loss, right?

    I am confident of at least two things: Should forcible confiscation ever be attempted, we will find that the people braying the loudest in support will have no desire to put themselves in harm's way.  And after the third or fourth raid in which a law-abiding gun owner is killed, there are going to be a lot of very angry, armed citizens who will lock and load and tell the confiscation proponents: 

"Molon Labe."






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