There is an argument still being made post–
Heller that the Second Amendment was intended to protect states, and not to protect an individual right to keep and bear arms. The objective of the Second Amendment, the argument goes, was to secure free states by way of armed militias. It may be that citizens had their own arms in colonial times, but as far as the Bill of Rights was concerned, that was simply a means to the end of state security.
According to this argument, if a state’s security could be protected by arms while its individual citizens were totally disarmed the Second Amendment would not be offended.
I disagree. I think the arguments against this theory are very strong.
But let’s put that argument aside. Let us say—
for the sake of discussion—that this understanding is right. Let’s say that the Second Amendment was written to protect state interests and state interests alone. “The right of the people to keep and bear arms” means “the right of the select group of people in a state specifically authorized by the state to protect state security to keep and bear arms while on duty and under the direct control of the state.”
All the arguments I will make hereafter rest on this assumed premise.Regardless of what Madison and the rest of the Bill of Rights' Framers meant, there is another issue. The Constitution can be legitimately modified by amendment. And the fourteenth time that the Constitution was amended the Second Amendment was affected.
Let’s review the history.
The Supreme Court was corrupt early in our history. In its most infamous
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393">case it made up its own facts to support slavery. It claimed that blacks never were citizens and never could be, because they were not citizens at the Founding. That was a lie, and I showed why
here.
Another mistake the
Dred Scott Court made (according to our premise) was to see the Second Amendment as protecting an
individual right:
A reference to a few of the provisions of the Constitution will illustrate this proposition.
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
Yet another mistaken idea of the
Scott Supreme Court was that all citizens had a right to carry arms everywhere they went:
For if they {blacks} were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police <60 U.S. 393, 417> regulations which they {Southern Whites} considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
To summarize, the Court claimed that
1) African Americans were not, nor could they ever be citizens
2) The Second Amendment protected an individual right—a right “of person”
3) Among the “privileges and immunities” of citizens were the right to enter every state and to “keep and carry arms wherever they went”
Since we are on a Democratic site—and not a skinhead or KKK site—I will assume that we all reject the first claim. And we’ve already rejected the second claim, so the rejection of the third claim naturally follows.
That’s three strikes. According to our understanding, the Court struck out pitifully.
Unfortunately, as we know, the Court gets the final word in interpreting existing constitutional text. So, for instance,
Heller sticks in the craw of those who share our views on the last two claims. The only way to overrule the Supreme Court is to amend the Constitution. That’s precisely what America did with the Fourteenth Amendment.
Let’s look at the
Amendment’s Section 1:
AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And here is how one the author of Section 1 introduced it:
“{The Fourteenth Amendment’s} first clause, {which} I regard as very important . . . relates to the
privileges and immunities of citizens of the United States . . . . To these
privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—
to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people;
the right to keep and bear arms. . . . …{T}hese guarantees . . . stand simply as a bill of rights in the Constitution …
States are not restrained from violating the principles embraced in them …. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”—Senator Jacob Howard introducing the Fourteenth Amendment to the Senate
Source: Yale Professor Amar. Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Harrisonburg, VA: R.R. Donnelley & Sons Company, 1998), 185-6 (emphases supplied).The Amendment defined citizenship--explicitly overruling
Scott. That much we agree with the Amendment on. But the rest of Section 1 only made things worse. It quoted the Court’s “privileges” and “immunities” language and made clear that the full rights of citizenship belonged to all of the citizens. That would imply that all citizens could keep and bear arms in every state!
It gets worse. The Framers knew exactly what they were doing. They said that “
The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees”—the first eight Amendments of the Bill of Rights.
What a travesty! We have the ridiculous spectacle of a right of the sovereign states being enforced against the states themselves!!! How can Congress be empowered to enforce a state’s rights against that very state?! Yet that is what the Amendment does. Read it for yourself:
Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Given our premise, that is stupid, and illogical, and self-contradictory and wrong. But it is still legitimate.
You see, the Framers of the Fourteenth Amendment are right by definition. If next year an Amendment were ratified that said that the Third Amendment means only that soldiers may not be quartered in citizens’ homes in times of peace
during leap years,—and thus quartering during peace is legal most years—that would be the new meaning of the Third Amendment. It wouldn’t matter what Madison or the original signers meant.
So I have a simple question for those who disagree with
Heller. What do you think of the Fourteenth Amendment? What do the words of the Amendment mean? What do the words of the author mean? Did the people who framed it misconstrue their own words?
It seems to me that whatever the Second Amendment originally meant, it now means that there is a personal, individual right to keep and carry arms, enforceable against the all of the states—Illinois, New York, and California included.
What do you think, and why?