bill of rights

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The Second Amendment And Reality


I am writing this as an historian who focused on U.S. History. Conservatives today are making hay claiming that they are simply using a founder’s view of the Amendment. This could not be further from the truth. Additionally, in 2008, the U.S. Supreme Court ruled that the right of the individual to bear arms is sacred. Still, a handful of states have laws that outlaw carrying weapons in public. But now, a New York law is in their N.R.A.’s sights as it challenges a law in that state that bars the carrying of a loaded weapon.

Republicans since the 1970s have made a mockery of the Second Amendment. Their claim of historical accuracy is an entirely false spin. How can that be? We need only look at the years from 1767 to 1789. Starting in 1770s, the court on King George through its military emissaries in the Colonies, took steps to remove arms and gun powder from the militia forces each town had. Their final assault on the colonists right to have a well-armed militia took place on April 19, 1775 when British Regular army and marine units set foot to remove the powder from Concord. Now the colonists were well aware of the British forces intentions and removed all arms and gun powder from Concord’s armory. This assault was the last in many other such assaults, all failures, the British Military conducted.

The question here is why was the court of King George III dictating such maneuvers? The answer does not lie in the simple desire of the crown to increase its power over Colonial America. In 1767 the British Parliament passed a set of laws called the Townshend Act. Within this act were the Revenue Act, the Port Act, the Quartering Act and the Indemnity Act. Where the colonies had no representation in Parliament, the colonies rightly felt repression. But these acts were only the beginning of additional acts the British Parliament passed to reign in the colonies. Parliament felt the colonies were out of line with British law, and to come extent, they were! A great example of this was the overt act to avoid taxation in the sugar trade. Massachusetts had a thriving rum distillery business. These merchants set up the triangle trade where sugar was shipped directly to Jamaica where molasses was manufactured. There being no tax on molasses, the substance was then shipped to the Massachusetts, and other, distilleries in the colonies. Another example was the requirement that all ships be built in England. With its lush forests, this law also was entirely ignored. In Manchester NH there is a road named Mast Road which derived its name from the large trees which were hauled over that road on their way to Portsmouth where ships were built.

These restrictive and coercive acts stirred large amounts on rancor among all colonies towards England. Since the earliest of days, the various cities and towns of colonial America secured individual militias to, first, protect them from Indian attack and later as a general form of individual protection. These towns elected their own officers, who, then reported to the General Officers each colony appointed. About 1773 the English forces overtly sought to insert their dominance over the Colonials. On this particular point, however, the colonial stood firm, never giving an inch to the English troops. This, of course, infuriated and exasperated English Parliament as it was never able to overcome the Colonies desires on this point.

One further point must be observed. In the early to mid-1770s, England’s Parliament sought to quiet American editorialism and their individual’s right to protest. The colonists believed these points to be sacred. English oppression was obvious. And it was on this very point that Bostonians, lead by Samuel Adams, went to the port of Boston and threw the tea from three English ships into the bay. The value of that tea at that time was approximately $1 million. That would translate to roughly $33.5 million today.

Now if you look at the Bill of Rights and then at the various coercive acts of England, you will find a one-to-one correlation. 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.” In this Amendment you need only look at two phrases to realize that it simply refers to the ability of each state to maintain an active militia which today is known as the National Guard. And we know this to refer only to a group but the phrase, “right of the people” where the noun “people” is always plural, never singular. Now if, as in 1790 America, most town’s militias required the individual to purchases their own arms to participate in the militia, that right would naturally transfer to the individual. It is over this point jurists argue. Today’s National Guard has its weapons and ammunition supplied by the Federal Government, their is no require put upon the individual. This, therefor, negates the notion of an individual’s right to bear arms according to the original act.

However, as a nation of ever changing laws, we have granted, via the various state’s primacy, the individual to hold arms. And the Constitution, via another amendment, has made a state’s law inviolable. That means that New York has the right to restrict, as the state legislature sees fit, who can own fire arms and to restrict the ownership of certain types of arms ownership. And therefor, the Federal Government is not allowed to make a national law regarding this amendment.

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Understanding the U.S. Constitution and Bill of Rights


When it comes to understanding their own history, Americans are horrible. To be fair, the manner in which U.S. history is taught leaves a lot to be desired. However, that does not excuse Americans from having a basic understanding of the events that shaped our country. When America was founded the settlers believed they would be an equal part of the British Empire. They were, after all, born in England and never believed their moving to a new continent would in any way change their status as citizens of England.

Americans adopted English law as the basis of their government. And every English settlement was a certified English corporate entity. And to that end almost all trade by Americans was with England. Americans exported cotton, wool, indigo and other raw materials to England. In return they got cloth, tea, kitchen utensils and other finished products. This lasted into the early 18th Century when American industry started coming into its own. For example, all goods shipped on the water were supposed to be carried on English ships however American ship owners took exception to this. As part of the “triangle trade,” Americans were supposed to send sugar and molasses to England. But rum loving Americans thought it far more economical to ship their sugar to the Caribbean and get their rum on the return voyage and one their own ships.

Then starting in the mid-18th Century England instituted a series of measures designed to bring the colonists into line. Taxing goods was nothing new but the King sent troops to America to insure that taxes were paid and English authority abided. Then in 1767 Parliament passed a series of laws that became known as the Townsend Acts. There was the revenue act, the customs act, the admiralty act, which were added on top of the quartering act of 1765. And finally in 1774 it passed the Boston Port Act, a law designed specifically to punish the belligerent population of Boston.

The 1770s also saw England replacing colonial elected governors with military governors and sending English judges to America to decide the fate of Americans brought to trial. This was meant to quell American resistance to English admiralty law but was used in other situations.

Gen. Thomas Gage, the military governor of Massachusetts and commander of 5000 British regular soldiers, considered Massachusetts residents “bullies.” After the Boston Massacre, December 1770, Gen. Gage said, “America is a mere bully, from one end to the other, and the Bostonians by far the greatest bullies.”  In 1774 Gage was engaging in a series of sorties designed to remove stores of guns and ammunition, gun powder, from colonial militia stores.  Prior to his assault on Concord, he had sent troops to Salem, Somerville, Plymouth, and Portsmouth NH in an effort to control local militia.  And as troops arrived in Boston from England, Gage ordered Boston residents to give them room and board.  That was a month prior to the battles of Lexington and Concord.

When the U.S. Constitution was passed in 1789 it was a compromise document.  The writers of the Constitution, for example, had written in a clause putting an end to slavery.  But to gain the support of 9 of the 13 colonies such a clause was not yet viable.  That basic document established our government, how it would be run, how power was divided, how elections were to be held, and some other basic items.

The full force of the basic Constitution took effect when the first election was finished and the government formed in January 1789.  Congress immediately took measures to amend the Constitution to frame some basic rights for individual Americans.  The basic document makes no such assurances.  In the years leading up to the revolution Americans could not speak freely.  Any words seen as inflammatory to British rule were enough to have a person jailed for treason, sedition, or other acts of malfeasance.  Hence the 1st Amendment is such because it free speech, and particularly that regarding the press, was deemed necessary for a legitimate democracy.  The second part of the 1st Amendment, that government can make no law with regard to religion, was a reaction to the close ties of the Church of England to English government.  That any single religion had power over a people of many religions was not acceptable.

The 2nd Amendment was simply the reaction to Gen. Gage’s overt attempts to keep Americans from having their own organized militia.  The American Revolution was fought largely by individual state militias that fell under the control of Gen. George Washington.  Most Americans believed, and with good reason, that a standing army controlled by a central government would wield its power over state militias.  This was not ironed out until after Thomas Jefferson left office and the War of 1812 commenced.  But the amendment was written specifically to reassure each individual state that its ability to raise and maintain an organized militia would be guaranteed for all time.  But this amendment effectively required states to purchase weapons for its citizen soldiers.  Prior to and during the revolution, each man was required to purchase his own weapon.

The 3rd Amendment seems irrelevant in today’s world, and it probably is.  But the Amendment was a direct response to the British Quartering act.  The American military is banned from quartering its troops in private residences.

The 4th Amendment protects Americans from unreasonable search and seizure.  This too was a direct response to common practice by British troops stationed in America.

The 5th Amendment guarantees due process and the right of Americans to remain silent in cases brought against them.  An important, though less known part of this amendment, is that it separates military law from civil law.  It also indemnifies Americans from double jeopardy.  Again, all these things happened to Americans while they were under British rule and particularly in the decade leading up to the revolution.

Amendments 6 through 8 insure that certain civil liberties in courts of law as being absolute with the 9th Amendment reinforcing the idea of equality under the law.

The 10th Amendment is the first amendment which arose solely from experience between the 13 original colonies.  Those colonies saw themselves as individual republics and were very mistrustful of a superior central government.  The southern colonies feared the power of Massachusetts, New York, Pennsylvania and Virginia.  What they desired was a certain level of autonomy.  They wanted to be able to create laws of their own and that such laws be independent of any law made in any other state and the federal government.  For example, almost all the northern states had passed laws outlawing slavery.  The south was not ready for such legislation and did not want the influence of the abolitionist north affecting their individual state’s law.  This amendment guaranteed that.

There are a total of 27 Amendments, 26 in force the 18th, Prohibition, having been repealed.  It took a year to passed the first ten and the next 17 ever since.  Passing a Constitutional amendment requires agreement of two-thirds states.  With there being only 13 states that made the first ten fairly easy.  But in 1912, when Arizona became the 48th state, that meant an agreement of 32 states, a difficult feat.

Anyway, we call the first 10 amendments “The Bill of Rights.”  But that is a misnomer simply because the entirety of the Constitution is our Bill of Rights.  The elimination of poll tax, the right of women to vote, the end of slavery, all individual rights, are no less a part of a bill of rights.  But the ability of Americans to either misconstrue or not understand each portion of our constitution is shameful.  People cannot defend themselves against intrusion of their individual rights either by government or corporation or individual if they are not fully aware of what they are constitutionally guaranteed.

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Are Our Individual Constitutional Rights In Danger?


In a word, yes.  The “Patriot Act” was one of the single greatest assaults on our Constitutional Rights that this country has ever endured.  It seems, however, few people either realize this or believe it.  But history tells us a very different story.

In the late 1920s and early 1930s Germany was nearly bankrupt.  Its economy was in free fall, unemployment was extremely high, and there seemed to be no hope.  Adolph Hitler took advantage of those extreme circumstance to wrest control of a constitutionally based government into a government-run at the whim of an individual political party, the Nazis.  Hitler used fear and prejudices early in role as chancellor of Germany to convince the German people that his draconian measures were necessary for the German economy and for the survival as Germany.  The German people allowed their fears to control them and fave Hitler carte blanch.  It was not long before those who opposed what he was doing to be called unpatriotic and arrested.  Laws were changed to suit his political ambition.  The judicial branch became so compromised that it was rendered impotent.  What happened after that was very predictable.  We know the history from then on but can such things happen in America today?

The degree to which Hitler took things in Germany are unlikely to happen in the U.S. but that does not mean we are immune from treading on similar grounds.  One of the best known portions of the “Patriot Act” was the corruption of our absolute right against unreasonable search and seizure, the 4th Amendment.  What it did was allow certain government agencies the right to search without a warrant, the right to wire-tap without a warrant, and the right to detain people without the ability to retain an attorney or be charged within 24 hours.  Our 5th, 6th, and 7th Amendment rights, the right against self-incrimination, speedy trial, and trial by jury were all compromised.  Americans allowed their fears to control them and so allowed Pres. Bush to put this act in place with very little opposition.  What we should know, it is harder to repeal a law than put one in place.  We need to be extremely judicious and cautious about any law that even gives the appearance of reducing any of our Constitutional rights.

Another very common attack is the one against our first amendment rights, the part that says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  In 1963 a woman named Madeline Murray O’Hare challenged the reading of the Bible in public schools.  I can tell you I personally believed her to be the devil incarnate at the time.  Prayer in school was a tradition.  The furor raised over the issue at the time was immense.  The U.S. Supreme Court ruled that prayer and Bible reading in public schools was unconstitutional.

It took me a long time to get my arms around this but I now see that such separation is absolutely necessary.  One simple question needs to be asked of each person.  Whose prayers or whose Bible would we read and say?  There are hundreds, maybe thousands, of translations to the Bible and just as many different religions.  But just as importantly is the right of an individual to not believe in God and therefore, not be put in a position where someone’s God is forced upon them.  And that is exactly what the writers of the Constitution were thinking when they proposed this amendment.  They knew of the English law requiring the Church of England be part of the government and they did not want that repeated in the U.S.

Section 8 of the constitution states that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  That power is being systematically eroded by powerful political action committees.  Various industries in the United States, and abroad, have formed coalitions to prevent or reduce regulation of their business.  These PACs have become so powerful that they know they can sway a Congressional vote to favor them at almost any time.  This is an absolute assault upon us because the government is “of the people” as Abraham Lincoln noted.  Nowhere is there any reference to our government being responsible for the well-being of individual commercial adventures, and yet that is exactly what is happening today.

We need to jealously guard of civil rights and question anyone who even suggests we give up even the smallest portion of any one of them.  We cannot become complacent about protecting them because any freedom lost is doubly hard to regain.