Security of a free State
- as shared by Brian Dzyak
Have you ever said, “I support the Second Amendment…”? Here is why you really don’t.
The Founders did not want this nation to have a standing army so they wrote Article One, Section 8, Line 12 to prevent it. (To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;) They had just fought a war against a professional standing military and knew the inherent dangers of such an entity, particularly in the hands of a tyrannical government and had no desire to repeat that mistake.
“As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.” (James Madison: notes of debates in the 1787 Federal Convention)
“Nor is it conceived needful or safe that a standing army should be kept up in time of peace for [defense against invasion].” –Thomas Jefferson: 1st Annual Message, 1801. ME 3:334
“The spirit of this country is totally adverse to a large military force.” –Thomas Jefferson to Chandler Price, 1807. ME 11:160
“The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so.” –Thomas Jefferson to Thomas Cooper, 1814. ME 14:184
“I am for relying for internal defense on our militia solely till actual invasion, and for such a naval force only as may protect our coasts and harbors from such depredations as we have experienced; and not for a standing army in time of peace which may overawe the public sentiment; nor for a navy which, by its own expenses and the eternal wars in which it will implicate us, will grind us with public burdens and sink us under them.” — Thomas Jefferson
“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.” — James Madison
“ “Concerning the Militia.” It addresses a general distrust in standing armies, and especially in national control of the same. A “militia” is a body of armed men who are not soldiers by profession, but have been called together for the common defense. Hamilton suggests that properly organized local militias, available for national needs, would make a standing army unnecessary.”
As Hamilton points out, it would be thoroughly impractical to discipline all the militia (armed citizenry) of the United States. Therefore, it is not a suitable proposition for the general defense of the nation. However, the state ought to organize its own militia “of limited extent,” which ought to render a standing national army unnecessary. He writes:
“This will not only lessen the call for military establishments, 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 the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
Our British heritage certainly recognized the distinction between a militia and a standing army. Our Founding fathers had no difficulty with the distinction either. What they contemplated and used during the Revolution War was militias. What the British used on American soil was a regular standing army.
In the absence of a standing military, they wrote the Second Amendment to provide the mechanism by which We the People would defend our government and nation whenever Congress declared an Act of War.
The idea was that there would be a network of well-regulated Militias dispersed throughout the States, governed by Congress and controlled directly by the States, per Article One, Section 8, Line 16. (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;)
When Congress wanted to declare an Act of War, they would have to ASK We the People for permission to send us into harm’s way and present iron-clad evidence that war was the absolute last resort after all diplomatic efforts had been exhausted. If we agreed that war was necessary, the network of well-regulated Militias would band together to form a grand army. E Pluribus, Unum… Out of Many, One. Our actual National Motto.
At that point, Congress would appropriate funds for THAT SPECIFIC WAR per Article One, Section 8, Line 12 (To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years). At the end of that two years, the situation would be evaluated. If war was to continue, Congress would grant another two year appropriation of funds. If war was deemed over, appropriations would cease and the survivors would return home to their lives and local well regulated Militias.
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.
A WELL REGULATED MILITIA
- The Founders defined precisely what they meant by “well regulated Militia” in the Militia Act of 1792. (Read the entire Act here: https://www.mountvernon.org/education/primary-sources-2/article/militia-act-of-1792/ ) The section pertinent here reads:
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.
Gun advocates want to claim that “every citizen is already part of the Militia,” but we can clearly see that according to the authors of the US Constitution and the Militia Act of 1792, this is not the case. Specifically one must FIRST JOIN a well regulated Militia AND THEN acquire required weapons … “That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock etc.”
So clearly, the idea that a citizen A) “should first be armed” and B) “is a member of a well regulated Militia automatically by virtue of existing” is sheer nonsense.
The Militia Act of 1792 also reaffirms Article One, Section 8, Lines 14 and 16
(To make rules for the government and regulation of the land and naval forces;)
(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;)
by saying:
III. And be it further enacted, That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General’s office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and bugler. That there shall be a regimental staff, to consist of one adjutant, and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon’s mate; one serjeant-major; one drum- major, and one fife-major.
There are a number of unregulated groups of armed citizens who claim to be “militia,” but are neither governed nor sanctioned by Congress or their respective State legislatures. They can best be described as “gangs” who dress in military fatigues and carry guns knowing full well that with the existence of a standing military, Congress will never A) govern them nor B) call them up for service. They just want to play soldier without any of the responsibility or accountability.
BEING NECESSARY TO THE SECURITY OF A FREE STATE
- Regarding “being necessary to the security of a free State”
This phrase refers to national defense, per Article One, Section 8, Line 15 (To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;)
The word “State” replaced the word “Nation” from the original draft in order to guarantee RATIFICATION by Southern Slave States who were looking for legal justification for their slave patrols. Despite this, the original INTENT of the Second Amendment didn’t change, that being a mechanism for national defense (as opposed to self-defense as suggested erroneously by the DC vs Heller Decision).
An important note: Article One, Section 8, Line 15 uses the phrase “suppress insurrections” which is an important component to the paradigm the Founders envisioned. With a dispersed network of well regulated Militias spread across the States (as opposed to a central military force under command of the Federal Government), if one of the well regulated Militias went “rogue,” the President could call forth the rest of the well regulated Militias to suppress that insurrection. A nation with a centrally controlled military force wouldn’t/couldn’t be called upon to suppress itself if it went rogue.
THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS
- Regarding “ the right of the people to keep and bear Arms”
Again, the first half of the Amendment is a qualifier for the second half as described above. The “right to keep and bear” is permissible AFTER a citizen officially joins the local well regulated Militia, per the Militia Act of 1792. It is not a blanket permission slip for anyone with a pulse to “keep and bear guns” as gun advocates claim.
ARMS
- Regarding the word “Arms”
Universally accepted as a term associated with weapons required and necessary for MILITARY use. Guns are indeed in the Arms category, but are not the totality of what is being referred to. The Amendment’s use of the word “Arms” is sufficiently specific to weapons of military grade and ALSO sufficiently vague as to allow for all types of weapons that were in use at the time as well as any that the Founders couldn’t yet conceptualize. The Militia Act of 1792 is very specific in describing very specific weapons a member of the well regulated Militia should have, but the Second Amendment provides the space for all manner of present and future weapons to be included.
SHALL NOT BE INFRINGED
- Regarding “shall not be infringed”
Again, in context of the rest of the Amendment, this right exists solely within the auspices of a citizen officially joining a well regulated Militia for the purpose of national defense. See above.
The NRA and gun advocates hinge their entire argument for unrestricted gun ownership on this specific portion of the Amendment and work hard to either redefine the rest of the words or ignore them altogether. Their own DC vs Heller Decision, which was intended to replace the context of “national defense” with “self defense” in fact INFRINGES quite specifically.
On pp. 54 and 55 of DC vs Heller, the majority opinion, written by Justice Antonin Scalia, states:
“Like most rights, the right secured by the Second Amendment is not unlimited…”
It is “… not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
“We also recognize another important limitation on the right to keep and carry arms. Miller (an earlier case) said, as we have explained, that the sorts of weapons protected were those “in common use at the time”. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
A bedrock justification of personal gun ownership outside the context of national defense is the claim that “the right to keep and bear Arms shall not be infringed” which conveniently ignores the entire first half of the Amendment that does reference national defense (“A well regulated Militia, being necessary to the security of a free State”). Indeed, even the NRA has inscribed only the words “the right to keep and bear Arms shall not be infringed” on its headquarter’s lobby wall because of the inconvenience of acknowledging the portion referencing the Militia for national defense.
Per the NRA/Gun Advocate position, it is inconsistent and unconstitutional for the US government to place ANY limits (infringements) upon the People’s right to keep and bear ANY Arms they desire for personal self defense. To put it succinctly, if we are to use the logic utilized by the Heller Decision to jettison the context of national defense in favor of putting more weight on the words “the right of the people to keep and bear Arms, shall not be infringed,” then no person shall be kept from obtaining any Arms he/she desires for personal self defense. So not only should EVERYONE be permitted to get weapons, there should be zero restrictions on which weapons they are permitted to obtain and own and use. The pertinent words here are “infringed” and “Arms.” “Not infringed” means zero restrictions whatsoever on who can obtain weapons and zero restrictions on what ARMS one can obtain. The DC vs Heller Decision has specific language that DOES infringe both on who can obtain weapons and what Arms are permissible by nonmilitary citizens. That alone impedes on the Decision’s own logic that claims that The Second Amendment is not referencing national defense in a military context. If the Second Amendment has nothing at all to do with national defense in a military context, then it is wholly unconstitutional for the government to place any restrictions on The People’s right to keep and bear Arms of all types, including those traditionally used in a military context. Permitting only a governmental military to have possession of military-grade Arms seeks to redefine the word “Arms” in the Second Amendment to mean only “guns that are not of military grade.”
- If the authors of The Second Amendment intended to restrict this right to non-military grade GUNS, they would not have chosen the word ARMS which has a widely accepted definition meaning weapons within a military context.
- And the Heller Decision’s desire to restrict this right to own only non-military grade guns to certain citizens is an infringement, which again, is unconstitutional if we are to read the words in a literal context.
A true “gun rights” advocated decision utilizing the Heller Court’s logic that The Second Amendment has nothing to do with national defense and everything to do with self defense should have zero restrictions on WHO can obtain any ARMS they desire for self defense.
****For that reason alone, the DC vs Heller Decision should be struck down as unconstitutional as it specifically seeks to infringe upon the right of all people to keep and bear any and all types of Arms.***** … with a follow-up decision allowing ALL citizens to own and use ANY Arms they desire for personal self-defense.
If the Court decides that there should be a continued restriction on military-grade weapons for nonmilitary citizens, that would serve as an admission that the word ARMS is written with a military context in mind which in turn, would assume an admission that the first half of the Amendment is referencing national defense in a military context and not self defense by private citizens. If that is to be the case, then again, the Heller Decision should be struck down as it removes the context of national defense and replaces it with self defense. The words, “A well regulated Militia, being necessary to the security of a free State” would be understood as referencing national defense only.
Looking at the Amendment as a whole, it clearly was never intended to mean that “any citizen can keep and bear any guns he/she desires for any reason he/she desires no matter what.” The language and words and context are vital and the Founders chose those words for a specific reason as they worked to build a new nation that would be governed of, by, and for The People as opposed to rule by a monarch or dictator. Separating military power from a central command IS the way We the People defend ourselves FROM a potential tyrannical government. A government without a standing military is no threat to The People except legislatively, and we have the power of elections for that.
We know what was on their minds when they wrote the Second Amendment by what the THIRD Amendment says:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Clearly, the authors of the US Constitution were focused on creating a paradigm for national defense with an organized military force when they wrote Articles Two and Three. In no way shape nor form were they even thinking about how an individual could defend himself at home or hunt with weapons or use guns for entertainment. They were writing a paradigm for national defense. Period.
The Revolutionary-era State Constitutions actually do spell things out much more clearly… the Federal Constitution is actually just paraphrasing what was accepted political thought at the time — that the people should have the right to bear arms as enrolled members in the service of the militia, in the common defence of the State.
The Pennsylvania and Vermont constitutions are almost word for word copies of each other, and they both say:
“SECTION V.
The freemen of this Commonwealth, and their sons, shall be trained and armed for its defence, under such regulations, restrictions and exceptions, as the General Assembly shall, by law, direct; reserving always to the people, the right of choosing their colonels of militia, and all commissioned officers under that rank, in such manner, and as often, as by the said laws shall be directed.”
The Massachusetts Constitution of 1780 says clearly:
“Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.”
Quite opposite to what radical gun advocates say that guns were in the hands of citizens to fight against the government, the role of the right for citizens to bear arms was precisely the opposite — to serve for the common defence of the standing government in a legally embodied and regulated corps, under appointed and elected officers, trained using tactical manuals, and prepared to serve when called upon, since standing armies were feared to be agents of tyranny and liable to be used by corrupt monarchies to subdue the citizenry.
From the New York State Constitution of 1777:
“XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth.(12) And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.”
Note that in this case “bear arms” is used in the context of serving in an armed and embodied corps in defence of the state, not to own and carry as a big gun as you want, wherever you want, whenever you want.
So…what do we have in America now? A standing Army, a standing Navy, a standing Air Force, a standing Marine Corps, and standing Special Ops groups all over the world — all continuously funded with an on-going defense budget of nearly a trillion dollars a year (regardless of whether there is a war or not) or actually closer to two trillion a year if all costs are included.
In addition on the non-military arena, there are estimated to be over 400 million guns in the United States between police, the military, and American civilians. Over 393 Million (Over 98%) of those guns are in civilian hands, the equivalent of 120 firearms per 100 non-military citizens at home for self-defense, entertainment, and/or hunting. This is NOT what the Founders had in mind nor what the US Constitution calls for nor refers to in actual words or intent.
We have sold the store to an increasingly Fascist government that is all too capable of being oppressive with the full power of the standing Military Industrial Complex behind it financed with a mega annual appropriation in conflict with the actual Constitution. And an armed civilian population that grows increasingly violent as destructive Conservative economic and social policies push more Americans into desperation and mental instability.
For Conservatives concerned about an oppressive Federal Government, drawing down the standing military and moving military control to We the People via the intended network of well regulated Militias should be their position. Their NRA gun closets can’t come close to fending off the United States military if such an event ever came to pass. The Conservative position should be precisely this, what the Founders intended. But Conservatives are loath to give up their guns/toys at home for any reason, therefore they’d rather pretend that they could fight off the United States Army, Navy, Air Force, Marines, and Special Ops with the guns in their closets as they desperately work to redefine the words and intent of the Founders of this nation.
Naturally arguments will arise regarding the use of guns for self-defense, hunting, entertainment, and collecting, but as we can see, the Second Amendment in no way even remotely addresses these uses and therefore CAN’T be utilized as justification for those uses. The DC vs Heller Decision effectively hijacked the phrase “Not infringed” to prevent any meaningful attempts to regulate non-military “keeping and bearing” of guns, removing the context and national defense and replacing it with self-defense with hunting and entertainment thrown in all willy-nilly. If gun advocates do want legal justification for gun ownership outside the arena of well regulated Militias for national defense, then alternative discussions and laws outside the auspices of the Second Amendment would have to be created from scratch as the Second Amendment was not, in any way, written nor intended to provide the right to “keep and bear” guns for anything beyond providing for the common defense within the auspices of a well-regulated Militia per Article One, Section 8.
PS. Now, that’s all well and good, Brian, but there are just too many guns out there so there’s really nothing we can do. You can’t put the toothpaste back in the tube.
But we can. The Constitution provides the roadmap to fixing ALL of this, even cleaning up this gun problem the United States has. The best part is that we don’t have to TAKE the guns away from anyone. They’ll just GIVE them to us. Yep, it’s true. Intrigued? Read on! https://briandzyak.medium.com/we-dont-have-to-take-their-guns-they-ll-just-give-them-to-us-here-s-how-6a99f6989534
