second amendment

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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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Open Carry Law Redux


I seem to have attracted a lot of attention with my previous post. That’s good! The sentiment is that I got it wrong about open carry laws in the U.S. I didn’t. There are 12 states that allow unrestricted “open carry”: Alabama, Alaska, Montana, Idaho, Wyoming, Nevada, Arizona, New Mexico, South Dakota, Vermont, Kentucky, and Virginia. Another 13 states have a restricted “open carry law” which means you need a permit: Utah, North Dakota, Minnesota, Iowa, Tennessee, Mississippi, Georgia, Indiana, Maryland, New Jersey, Rhode Island, Connecticut, and Massachusetts. The rest of the states do not allow it under any conditions.

The NRA has successfully promoted the myth that the Constitution allows individuals to own guns. That is categorically false. But the Supreme Court has only made a decision of an individual’s right once in U.S. history and it actually sidestepped the issue by deciding against the petitioner without elaborating on the meaning of the amendment. My belief is that by the time the first challenged to the amendment’s meeting arrived at the SJC the justices understood it to be a very delicate case.  Although there have been numerous other challenges they have always come in the form of the powers, rights, and responsibilities of the militia and armed forces.  But in essence, the SJC’s reluctance to make any such ruling has by default affirmed an individual’s right to own a gun.

The wording of the second amendment starts by stating that each state is entitled to an armed militia. It goes on the say the “right of the people” which is using the word “people” in its plural form and not singular. At the time it was written, each state had been an entity unto its own and with limitations extended that upon ratification of the constitution. That is, under English rule each colony was headed by a chief executive, the governor, just as it is today. No colony was answerable to any other colony, and each enlisted, trained, and fielded its own militia as a defense force. The Townsend Acts of 1768 tried to end that when colonial governors were replaced with British governor generals and the armed militia was declared illegal. When British troops marched on Concord Massachusetts it was to disarm the militia. This was fresh in colonists’ minds when they wrote the constitution.

At the time the constitution was written there was a general mistrust of a central “federal” government. We could easily have had a signed constitution a year earlier were it not for that very fact and the difficulty in defining what the federal government would look like. People from Massachusetts did not see things the way Virginians did and Virginians not the way Georgians did. Those were seats of power at the time. An example of just how disparate these views were sits in the form of the “Bill of Rights” or the first ten amendments. Those amendments, plus a law banning slavery, were in the original constitution but the writers recognized they could not get the constitution ratified with all those things in the original document.

Now if you look at the Townsend Act, the Quartering Act, and a series of other laws instituted by Britain in the late 1760s alongside the “Bill of Rights” you will find they line up really well. But it took a full two years before these amendments were enacted, from 1789 when they were proposed to 1791 when they were ratified.  You must remember, however, at the time there were three basic types of guns, pistols, muskets, and cannons.  They did not envision things like revolvers, automatics weapons and other sorts of ordinance that exists today.

That said, I personally believe that individuals ought to have the right to possess any gun they want.  I have no desire to see any weapon declared illegal for an individual to own.  There are exceptions, of course, which I think even the NRA would not have a problem with.  Those exceptions are weapons like live hand grenades and missiles of any sort.  Where the NRA and I disagree is how people come to own such weapons and the terms upon which they can hold them.  I cannot imagine why any responsible individual would dislike background checks and registration, other than laziness and selfishness.  Why is it you do not mind that the government can track your car but not your gun?  Why is it intrusive to assure you have the right to own a weapon when you are purchasing one?  A reasonable person wanting to keep guns out of criminal hands cannot in good conscience challenge the safety of all to their own selfish ends.

Finally, I was not clear as to my meaning of what was happening at the end of the 19th century for that I apologize.  Most cities, and some states, had ordinances in place that outlawed “open carry” of guns.  In time, some states saw fit to overturn these laws with laws of their own, or to reaffirm the law.  At the end of the 19th century and the beginning of the 20th century states took it upon themselves to makes laws for the entire state that had previously been held by municipalities; liquor sales, employment, age requirements, and gun laws.  The gun laws became even more stringent during the 1920s when organized crime arose.   The idea that lawless was returning to the streets of America was abhorrent to the average citizen.  But by 1940 better state police forces and stronger federal law enforcement brought an end to that.  This started a period of good feeling by the general public.

I personally have no problem with people openly carrying weapons.  But I moderate that by saying I want the security of knowing that behind that gun is an individual permit to be carrying it.  I want to know that any person openly carrying a weapon has been properly vetted by law enforcement to insure that they actually have a right to own the gun in the first place.  I think in the case of Oklahoma, and any other state, if such assurances are given an open carry law will pass easily.

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The First and Second Amendments of the Constitution


As a student of history, particularly American, I have long considered why ou “Bill of Rights,” the first ten amendments to the U.S. Constitution, are in the order they are in and why they are written as they are.  Most historians agree that the writers of the Constitution, primarily were a small group comprising John Dickinson of Pennsylvania, Thomas Jefferson, and James Madison.  Dickinson did most of the draft writing and conferred with Jefferson and Madison on finer points.  Then it was brought to the Constitutional Convention for further discussion and revision.  A number of “plans” were put forth by various state delegations, one the best known being the “Virginia  Plan.”  What happened most was changing of some wording and elimination of a number of paragraphs.  To be sure, the ratified Constitution was considerably smaller than its original presentation.

The “Bill of Rights” came into being in the first two years of our nation.  They were added because the original document had to have ratification of ten states which would not happen if the words of the Bill of Rights were present.

The first amendment I have found to be particularly curious.  It has two seemingly unrelated parts folded into one amendment.  The first part addresses the establishment of religion.  The leaders of the day had an enormous distaste for a state established religion as had been the law in England.  The idea that any church had so much power within government was simply not acceptable to them.  In America, conversely, the three or four religions that first migrated to the American continent had given way to a multitude of religions.  Those present at the convention themselves came from Presbyters, Unitarians, Congregationalists, Lutherans, Quakers, and a few who were not allied with any particular religion. They realized quickly within their own small group that their own beliefs varied far too greatly to give countenance to any particular sect.  Although not a part of the Convention, Dr. Benjamin Franklin had made it known in the previous years how distasteful he found John Adams’ Puritan ethic.  They were at opposite ends of the religious spectrum even though they were mostly in sync in their political beliefs.  And that is what all the “framers” of the Constitution understood implicitly.  No one could pick any particular belief as the standard for our country.  They decided, perfectly, that to insure a continued an unfettered government that they would make it illegal for the government to favor any and all religious beliefs.  They were fully aware of people who were agnostic who balked at all religions as this had been both Franklin and Jefferson’s belief.

But then they wrote the send portion of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  This was John Adams at his finest.  No colony had suffered more oppression of suppressed rights to speak and write with impunity as Massachusetts had.  In 1768 when the Townshed Acts had been passed they were quite pointed towards Massachusetts.  England considered Massachusetts the greatest the greatest thorn in its side.  Newspapers written by Adams, Hancock and others consistently complained of the treatment by Parliament and the king.  Massachusetts had also gone through a series of public protests some of which ended in the loss of life or imprisonment.  To be fair, other colonies had suffered  similar events but not to the degree Bostonians had.

My only question is, why not make this declaration an amendment of its own?

Now we come to the infamous second amendment.  After the first amendment, no amendment has had more discussion.  The entire Constitution was written in some vague language.  The belief at the time was the Constitution should be a living document that would undergo change as the times called for.  With all due respect to my college professor in grad school, I do not believe the writers were thinking of individuals when this was written.  This is another Adams amendment.  The minutemen of Massachusetts, known as the state militia, had gone through repeated attempts by the British to curb their power.  One of the provisions of the Townshend Acts made it illegal for towns to warehouse stores of guns and gun powder.  Massachusetts towns had organized some years before into what were called “defense committees.”  Once a month the members would gather on the town green or common area to practice and drill with their weapons.  Many, if not most, of those weapons were provided to them by the state.  Contrary to any beliefs held today, those people were largely farmers and merchants who had no interest in hunting.  Gun ownership was of no particular interest to them.

But these same farmers and merchants did understand the need for home defense.  The British soldiers had shown no respect for their lands, their property, or their persons.  That meant these defense committees had a single purpose, to gather as a group, a militia, to protect those rights they staunchly believe in.  But I can assure you, their thought of the day was their remembering how crown had tried, in vain, to dismantle the colonial militia.  And that was the driving force behind the second amendment.  The right of the people (plural) to bear arms meant they could gather as a governmental body to protect themselves against any government that might try to gain control over them.  The thirteen original states were a very weak coalition held together by a piece of paper.  There was a high degree of mistrust between those various states.  It was felt that if each state could raise and support its own militia, that provided a safeguard against any other state trying to intrude on its rights.  They did not trust a central government’s military to protect them thusly.  If their governor controlled their militia they felt much safer

I am not making an argument here for any change in gun laws.  I am simply tired of the NRA, and others, pointing to the second amendment as the guarantee of an individual’s right.  It is not.  I am, in fact, very much in favor of the individual to have a right to gun ownership.  I am also a reasonable person and I believe there needs to be a reasonable amount of rules and regulation that keep those guns only in the hands of responsible and law-abiding citizens.  How do you do that?  I do not have an answer but I do know there is one but please do not point to the second amendment when  you make your argument.  Point to yourself as being a responsible and law-abiding citizen who has earned the right to have certain weapons of choice.