Bill Lockwood: The Right to Keep and Bear Arms

by Bill Lockwood

With the recent shootings in America liberal politicians have proposed curtailing the God-given unalienable right to keep and bear arms as a method to stem the violence. From presidential hopeful Joe Biden recently telling Anderson Cooper, “Bingo” when asked about the government coming for “guns” to Kamala Harris’ proposal that if she is elected president she will enact “executive orders” to confiscate “assault weapons” when Congress fails to act, the Second Amendment needs to be re-asserted.

It is a historical fact that in nations where political leaders wish to remove properties and freedoms of the citizenry, they always begin by disarming the populace. This normally begins by requiring registration of firearms and imposing penalties when they do not. This is followed in many cases by federal governments deliberately provoking rioting and violence which is then used as an excuse to confiscate firearms.

The Second Amendment—A Prohibition

“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.” The first thing to be noted is that the 2d Amendment is a strict prohibition against the federal government. It is not a declaration of rights, period. The right to keep arms was assumed to be God-given by the founders, but they added the Amendments to ensure that the national government would not touch these freedoms.

The Bill of Rights opens with this bold statement, “Congress shall make NO LAW …” What Joe Biden and his Democrat cohorts propose is unconstitutional on its very surface. Federal government has no say so in the matter. Making “no law” is pretty clear.

Second, there is a popular view today, though erroneous, that the 2d Amendment means that the National Guard should be able to keep and bear arms, but that the guarantee does not extend to ordinary citizens. Those who advance such an argument either have not read the Founders themselves who wrote the 2d Amendment, or hope you do not—or both.

The concern has always been, from the time of the creation of America until today, that a centralized federal government would evolve into a dictatorship or totalitarian state. The framers, with one voice, stated that the only counter measure to such gravitational pull over time was the populace itself. Alexander Hamilton, for example, in The Federalist Papers, asserted that liberty would always be ensured as long as the people were allowed to be “properly armed and equipped.”

James Madison, who authored the 2d Amendment, wrote that under the Constitution “the ultimate authority …resides in the people alone [due to the] advantage of being armed which the Americans possess over the people of almost every other nation.” Joseph Story, an associate justice of the United States Supreme Court (8112-1845), a foremost Constitutional authority, wrote:

The right of the citizens to keep and bear arms has justly been considered the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary powers of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

George Washington, commander-in-chief of the Continental Army, noted that

Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence….From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security, and happiness, the rifle and pistol are equally indispensable…the very atmosphere of firearms everywhere restrains evil interference—they deserve a place of honor with all that’s good.

Sam Adams, introduced in the Massachusetts convention the call to ratify the Constitution. In it he said that the “Constitution never be construed to authorize Congress to prevent the people of the United States who are peaceable citizens from keeping their own guns.”

Sir William Blackstone (1725-80), though not a founder of this nation, was one of the top four quoted authorities on Common Law. Lawyers in America until the time of Abraham Lincoln normally carried Blackstone with them. Of the right to keep and bear arms, Blackstone said,

“Of the absolute rights of individuals: the fifth and last auxiliary right of the subject … is that of having arms for their defense …”

He explained that the basis for this right is the “natural right of resistance and self-preservation when the sanctions of society and laws are found insufficient to restrain the violence of oppression” (Alan Gottlieb, The Rights of Gun Owners, 1983, p. 6). It is as if Blackstone was mirroring current day America and the push of Democratic and Socialist lawmakers to open our borders to the entire third world, turning our streets into combat zones in some cases.

State Militia

Still, some cling to the wording of the 2d Amendment which states a “well-regulated militia” is necessary for the security of a free people to insist that this right to keep and bear arms be reserved for a specialized unit which one must join. Nothing could be further from the truth. Most Americans do not realize that they themselves belong to the state militia where they reside. Title 10, section 31 of the U.S. Code defines the militia of each state as “all able-bodied males at least 17 years of age and under 45 years of age who are or have [made] a declaration of intent to become citizens” (W. Cleon Skousen, The Making of America, p. 694).

The United States Congress has weighed in on this topic as well. In 1982 a Senate subcommittee on the Constitution carefully documented the 2d Amendment understanding in a public report. After lengthy pages of history, it noted that in various states after the War for Independence many proposals called it a general duty for all citizens to be armed. Richard Henry Lee, for instance, observed that “to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them …”

George Mason of Virginia, drafter of the Virginia Bill of Rights, accused the British of having plotted to “disarm the people—that was the best and most effective way to enslave them.” Patrick Henry said that the “great object is that every man be armed and everyone who is able may have a gun.”

St. George Tucker, one of the earliest commentators on the Constitution and Chief Justice of the Virginia Supreme Court, published in 1803 his annotations. He followed Blackstone’s citations (noted above) and pointed out regarding the 2d Amendment that it is “without any qualification.” So also, William Rawle’s “View of the Constitution” published in 1825. He emphasized that,

“The prohibition is general. No clause in the Constitution could by a rule of construction be conceived to give Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

The 1982 Congress summarized some of the above material. First, subsequent legislation in the Second Congress “supports the interpretation of the Second Amendment that creates an individual right. In the Militia Act of 1792, the second Congress defined ‘militia of the United States’ to include almost every free adult male in the United States.”

They went on to add that these persons “were obligated by the law to possess a firearm and a minimum supply of ammunition and military equipment.” “There can be little doubt from this that when the Congress … spoke of a ‘militia’, they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard.” (Skousen, p. 699).

Second, the prohibition is strict and broad against the federal government or its officers from being able to address the issue of firearms or weaponry in the hands of its citizens. The reason is clear. As Joseph Story, in his Commentaries on the Constitution put it this way: the right to keep and bear arms is “the palladium of the liberties of the republic.” This is a natural deterrent to tyranny.

So, whether it is Elizabeth Warren, who wants to have the federal government involve themselves in background checks, or Kamala Harris, who has dictatorship-style plans to move unilaterally on guns if elected president, or Joe Biden, who plans to implement bans on “assault weapons” at the federal level, or Bernie Sanders, who promises some type of executive action on firearms—all of these are theorizing in unconstitutional territory. If the federal government can step into this arena—no matter how small a role—history shows that this foot-in-the-door will expand to larger roles as Constitutionally illiterate people pouring out of the colleges demand more federal control. Voters, beware.

 

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