And The War on the Second Amendment Continues
By Bob Owens on January 31st, 2014
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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.
To the modern layman, "shall not be infringed" seems quite explicit, but that didn't keep a federal judge in Connecticut from ruling that a law that clearly runs counter to the purpose and intent of the Second Amendment was nonetheless "constitutional."
Gun control advocates were buoyed Thursday by a federal court decision in Hartford that upholds Connecticut's toughest-in-the-nation assault weapons ban, calling it a constitutionally valid means of balancing gun rights and the government's interest in reducing gun violence.
"The court concludes that the legislation is constitutional," senior U.S. District Judge Alfred V. Covello wrote in a decision published late Thursday. "While the act burdens the plaintiffs' Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control."
Judge Covello held that though variants of the AR-15 are "in common use" (which is a matter of fact, not opinion: AR-variants are the most common centerfire rifle sold in the United States), Connecticut's ownership and sales ban is justified because of the government's goal of "reducing violence."
Put in the bluntest possible terms, Covello simply ignored the purpose, context, history, and intent of the Second Amendment in order to use the lesser judicial standard of "intermediate scrutiny," and based that upon the approach taken by previous courts. He also seeming suggested that almost any gun control law is permissible is long as we arm disarmed for the so-called "public good."
We have no one to blame for this lesser standard than the Supreme Court of the United States itself, which has effectively and cravenly refused to tell lower courts by which standard challenges to the Second Amendment should be judged, a fact noted by Mehr and Winkler in The Standardless Second Amendment [PDF].
Given that the Supreme Court held that the Second Amendment protected the "fundamental right" to possess arms in defense of the home, some courts have reasoned that strict scrutiny should apply to gun laws.[27] These courts usually argue that fundamental rights automatically trigger strict scrutiny. Descriptively, the courts are wrong; in numerous areas of constitutional doctrine the Supreme Court has held that a right is "fundamental" but that some other, lesser standard of review applies.[28]
Although nearly all of the Bill of Rights has been applied to the states on the grounds that the rights involved were "fundamental," strict scrutiny is only applied in cases arising under the First and Fifth Amendment in the Bill.[29] Strict scrutiny is not applied in cases arising under the Fourth, Sixth, Seventh, Eighth, Ninth, or Tenth Amendments. Even in the First and Fifth Amendments, strict scrutiny is only used selectively, with less demanding standards applied to, among other things, restrictions on commercial speech, content-neutral speech laws, sex discrimination, generally applicable laws burdening the free exercise of religion, and takings of property.
I would argue that a "fundamental right" (of which the right of defense is clearly paramount) deserves nothing less than the standard of strict scrutiny, though as Mehr and Winkler note, the Supreme Court has only rarely kept to that standard. This refusal to adhere to strict scrutiny is without a doubt the reason the federal leviathan has been able to usurp so much power and control over a citizenry that is now inarguable not free.
The Second Amendment, as written, is clear and unambiguous.
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.
"Well-regulated" means properly armed and trained. The militia is all of the people, as noted under U.S. code, comprised of both the organized militia (the National Guard and Reserves) and the unorganized militia (pretty much everyone else capable of picking up a gun).
There is no specific mention of " personal self defense" (which is how courts like to try to interpret laws to justify the lesser standard of intermediate scrutiny) in the amendment, but there is a direct and unambiguous statement that this well-armed and well-trained citizenry is "necessary to the security of a free State." This means that the militia (which is all of us) should be armed to serve in a military capacity, which is how the security of states and nations are secured when diplomacy fails.
There simply is no other rational, contextual way to read the Second Amendment. The Founders wanted us armed with arms sufficient for contemporary combat, as they were.
The Founding Fathers, who had just concluded a long and costly war for liberty, in which civilians were armed with the same arms are the military, and in some cases, actually had arms of superior range and accuracy than that of the gneral infantry (Morgan's Riflemen, other rifle companies). They were quite explicit in their view that American citizens had the right to own military-grade arms.
Thomas Jefferson, principle author of the Declaration of Independence, wartime governor of Virginia (1779-81), our first Secretary of State and third President of the United States, was explicit and consistent in his views.
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322)
"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal to Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J. Boyd, Ed., 1950] )
"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…. The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants." (Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy 20, S. Padover ed., 1939)
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks. (Thomas Jefferson, Encyclopedia of T. Jefferson, 318 [Foley, Ed., reissued 1967]; Thomas Jefferson to Peter Carr, 1785. The Writings of Thomas Jefferson, [Memorial Edition] Lipscomb and Bergh, editors)
"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." (Thomas Jefferson to James Madison, Dec. 20, 1787, in Papers of Jefferson, ed. Boyd et al.)
The primary author of the Bill of Rights (including the Second Amendment) was James Madison, and he was equally explicit, well beyond "shall not be infringed."
"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." (James Madison of Virginia, The Federalist, No. 46)
"The right of the people to keep and bear…arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country…." (James Madison, I Annals of Congress 434 [June 8, 1789])
"Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms." (The Federalist, No. 46 at 243- 244)
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation…. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (The Federalist, No. 46)
"It is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to posses the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it." (The Federalist, No. 46)
Likewise, George Mason, co-author of the Second Amendment, stated:
"…to disarm the people – that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)
"I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426)
(The American Colonies were) "all democratic governments, where the power is in the hands of the people and where there is not the least difficulty or jealousy about putting arms into the hands of every man in the country. (European countries should not) be ignorant of the strength and the force of such a form of government and how strenuously and almost wonderfully people living under one have sometimes exerted themselves in defense of their rights and liberties and how fatally it has ended with many a man and many a state who have entered into quarrels, wars and contests with them." (George Mason, "Remarks on Annual Elections for the Fairfax Independent Company" in The Papers of George Mason, 1725-1792, ed Robert A. Rutland [Chapel Hill, 1970])
Contemporary accounts taken from the Founders leave no rational room for disagreement. They wanted us to be armed with weapons of contemporary military utility, and they wanted us to be proficient ("well regulated") with them.
These weapons included the Girandoni, a nearly-silent repeating rifle with a 21-shot magazine created circa 1779, used by elite military units. Two of these "assault weapons" were purchased by Thomas Jefferson and send west with Lewis and Clark. This arm with a detachable "high capacity" magazine is now illegal in Connecticut for being too advanced for citizens to own, 235 years after it was created.
This is beyond absurd.
We, the People, have always been armed with military-grade arms, and it is only recent tyranny that has attempted to strip us this fundamental rights to met force with force against criminal and tyrant alike.
Judge Covello (and other courts) like to pretend that self-defense is a matter of home defense, and ignore the Founder's clear intent that the citizenry be armed with arms of contemporary military utility. This intent was not just self defense as the courts like to pretend, but to pose a clear and substantial deterrent to both foreign enemies and domestic tyranny.
Once again, we return to Madison:
Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.
On a candid examination of history we shall find that turbulence, violence, and abuse of power by the majority trampling on the rights of the minority, have produced factions and commotions, which in republics, have more frequently than any other cause produced despotism. If we go over the whole history of the ancient and modern republics, we shall find their destruction to have generally resulted from those causes.
– James Madison, Speech in the Virginia Ratifying Convention on Control of the Military, June 16, 1788 in: History of the Virginia Federal Convention of 1788, vol. 1, p. 130 (H.B. Grigsby ed. 1890).
Those courts which refuse to recognize fundamental rights of the citizenry create the conditions for lawlessness within government. Decades of unchecked lawlessness within government have lead to the usurpation of the rights and power of the citizenry, and a federal government that seeks to become a tyranny.
By refusing to recognize the explicit intent of the Founders, and refusing to apply strict scrutiny to cases involving constitutional issues, the courts have failed the Republic.
May god have mercy on us all for their failures.
Author: Bob Owens:
Bob Owens is the Editor of BearingArms.com. A long-time shooting enthusiast, he began blogging as a North Carolina native in New York at the politics-focused Confederate Yankee in 2004. In 2007 Bob began writing about firearms, gun rights, and crime at Pajamas Media, and added gun and gear reviews for Shooting Illustrated in 2010. He is a volunteer in the Appleseed Project, where he shares stories of our shared American heritage and teaches traditional rifle marksmanship. His personal blog is bob-owens.com, and he can be found on Twitter at bob_owens.
