from the Congress Action newsletter
by: Kim Weissman
April 30, 2000
[All formatting as in the original]
Reference links follow the end of this article
For many years, our federal government has been gradually eroding many of our most fundamental Constitutional rights, and it is currently engaged in a concerted effort to totally eliminate the individual right to keep and bear arms that is protected by the Second Amendment of our Bill of Rights. The activities of this administration are so hostile to individual Freedom and to our Constitutional Liberties, and those activities are so willingly accepted by the majority of the people of this country, that there is serious doubt about the continued viability of our nation as a free representative republic.
The attack on the right to keep and bear arms is just one aspect of the assault on our Freedom, but that particular attack involves a campaign of lies, deceit, and disinformation so extraordinary in its scope and so pernicious in its intended effect, as to merit special attention. If public policy is to be pursued by reasoned debate pursuant to Constitutional principles, rather than by mass hysteria, an understanding of, and respect for, the fundamental facts of the issue must be held by all concerned.
There is a wealth of documentary evidence -- debates in the Constitutional Convention of 1787, debates in the State Ratification Conventions, letters and documents written by many members of the founding generation of Americans, contemporary newspaper commentary, the text of many of the original constitutions of the States as well as the provisions of most of the constitutions presently in force in the States today, and in the treatises of political philosophy widely read and relied upon by the Founders in creating our government -- that the Founders intended that the individual citizens of the new United States would retain their right to keep and bear arms, and retain their right of personal self defense. That evidence has been added to over the intervening years by decisions from numerous courts, including the United States Supreme Court, and by commentary from many learned jurists and scholars.
Beyond that clear documentary evidence of the intent of the Founders, there stands the historical context in which the Constitution and the Bill of Rights were drafted, debated, and ratified. The Revolutionary War for Independence began in earnest when a rag-tag group of colonial Minute Men met the British troops on the town green of Lexington, Massachusetts, on the morning of April 19, 1775. The British were marching to Concord, for the purpose of arresting the rabble-rousing John Hancock and Samuel Adams, and of seizing the muskets, gunpowder, and shot that had been accumulated by the colonists in Concord. Hancock and Adams were warned and readily eluded capture, but the stores of arms could not be moved.
In the years leading up to that April morning in 1775, the American colonists had often confronted the British authorities, and had protested many of the actions of the British government. To protest taxes, the colonists pelted British troops with snowballs in Boston Common; to protest taxation without representation they dressed up as Indians and threw tea into Boston harbor; to protest the Stamp Act that infringed on their freedom of speech, they boycotted British paper goods. But it was only when the British moved to confiscate their weapons that the colonists actually organized an armed force in opposition and actually opened fire on the British troops. It was in defense of their right of self-defense that the American colonists fired the "shot heard 'round the world".
Twelve years later, it was against that backdrop that the Founders gathered in Philadelphia to organize a new national government. At that convention was proposed a Constitution for the new central government. The purpose of that Constitution was to unambiguously define the structure, the powers, and the authority of the new government.
That any government has an inherent tendency to usurp power and to oppress its citizens was a truism that the Founders considered beyond dispute, and a danger that they took numerous steps to guard against in drafting their new Constitution. Their fundamental premise was that any powers not specifically granted to that national government by the People in their Constitution -- the enumerated powers, and powers necessary and proper for carrying into execution those enumerated powers -- would be beyond the legitimate authority of that government. Simply put in modern terms, the States and the People of the new United States said to their new national government, "If the Constitution doesn't say that you can, then you cannot."
Nowhere in that Constitution was the federal government given any authority whatsoever to disarm law abiding citizens, and thus even without the protection of the Second Amendment in the Bill of Rights, the authority to disarm law abiding citizens did not then, and does not now, exist. That absence of enumerated authority alone should settle the issue of "gun control" with finality.
But then consider the historical context of the Revolutionary War, the "citizen soldier", States jealous of their sovereignty, the inherently oppressive tendency of government, and a People acutely conscious of the long and costly war fought to secure their Liberty. And the "shot heard 'round the world" fired in defense of their right of self-defense. What would the reaction have been to anyone suggesting that the new national government be given the authority to disarm the citizenry? Certainly if such a proposal were made, it would have occasioned, at the very least, extremely heated debate. Such a proposal and the ensuing debate would have been recorded by someone, somewhere. It would have been the topic of debate in at least some of the State ratification conventions. Nobody today claims that such a proposal was ever made -- it wasn't -- let alone that such a proposal was debated -- it wasn't -- or that the federal government was ever actually granted such an authority -- it wasn't. Clearly, nowhere in the Constitution is such authority found, or even hinted at.
But people today do not claim that such authority was specifically and intentionally granted. Clearly, it was not. People today make an even more astonishing claim than that: they claim that such authority simply exists, even without ever having been proposed, debated, granted, or ratified!
The delegates to the Constitutional Convention debated long weeks over the precise terminology to be used in their new Constitution. Those delegates very carefully considered the implications of any powers granted to, or withheld from, the national government, and they argued for days over the implications, meaning, and effect of specific words and phrases they used. Yet many people today contend that the federal government has the authority to disarm the citizenry, and that such a momentous power exists even without any authority having been specifically granted by the Constitution, even without such authority ever having been proposed or debated in the Constitutional Convention, or in any of the State ratification conventions; that the power to do so simply exists even without such a suggestion ever having been made by anyone, anywhere, at any time during the founding and ratification period. Such an idea is precisely opposite to the very nature of the limited government of clearly enumerated powers created by the Founders.
But the Founders went even further than the limited and enumerated powers contained in the body of the Constitution itself. At the insistence of many of the States, they added a Bill of Rights. Many of the States refused to ratify the proposed federal Constitution without the addition of a Bill of Rights, and many States submitted proposals of fundamental rights that they insisted be protected by the Bill of Rights. The purpose of that Bill of Rights was to specify certain fundamental individual rights that were considered to be so important to Liberty as to merit special protection, beyond the protection afforded by the Constitution itself for all of the retained rights of the People.
The States and the People wanted to make it absolutely clear that those fundamental rights were unquestionably beyond the reach of the national government. The language of the resulting Bill of Rights is absolute and unambiguous: "Congress shall make no law…"; "…shall not be infringed"; "The right of the People to be secure…shall not be violated"; "… nor shall private property be taken…"; "…the accused shall enjoy the right…"; and the final two imperatives: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People."; and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People." The framers of the Constitution did not say "should not", or "may not", or "might not". They used the clear, mandatory, commanding language "SHALL NOT".
The Bill of Rights was designed to protect the individual rights of the citizens against government intrusion. It was not designed to protect the rights of government -- such a contention is absurd. Yet that is precisely the absurdity upon which rests the argument of those seeking to disarm law abiding citizens. The Second Amendment, many people today claim, protects only the right of the federal and State governments to keep and bear arms, and only within the context of police forces and State National Guards. Protects against whom?
Does the First Amendment protect the right of the government to Freedom of speech and of the press? The right of the government to Freedom of religion? The right of the government to peaceably assemble…to do what…to petition itself for redress of grievances?
Does the Fourth Amendment protect the right of the government to be secure in their persons (what is the government's "person", anyway?), houses, and papers, against unreasonable searches and seizures? By whom?
Does the Fifth Amendment protect the government against double jeopardy? The right of the government against self incrimination? The right of the government not to be deprived of its life or liberty (what is the government's "life" and "liberty") without due process? The right of the government to just compensation for property taken for public use?
Does the Sixth Amendment protect the right of the government to a speedy trial? The right of the government to confront the witnesses against him ("him" is the word used, not "it")? The right of the government to counsel?
Does the Eighth Amendment protect the government from cruel and unusual punishment?
And when the Tenth Amendment protects the rights of the States, it specifically uses the word "States". Twice. It clearly distinguishes "States" from "People" as two separate entities. It is thus obvious that when the Founders meant "States", they were fully capable of saying so. In the Second Amendment they did not say "States", they specifically said "the right of the People…shall not be infringed". The People.
The idea that the Bill of Rights protects governments and not people is demonstrably absurd and irrational, as is clear from the above suggestions. Yet despite all that, are we supposed to believe that the Second Amendment, alone among the Bill of Rights, protects only the government, and not the People? Are we supposed to believe, although the Second Amendment uses the word "People", that among all the other Bill of Rights provisions that also use the word "People", the Second Amendment alone really doesn't mean "People", it means "States", or federal government, only? Yes, that is precisely what we are asked and expected to believe.
The officials of our government know that they do not posses the legitimate authority to disarm law abiding citizens. So with the aid of a duplicitous national media, this administration seeks to incite mob hysteria to achieve its agenda of eliminating the individual right to keep and bear arms. Our government can enact any laws it chooses, no matter how illegitimate, and it unquestionably possesses the raw power to disarm the citizens of this country pursuant to those laws, if it so chooses. What is there to stop government officials who have repeatedly shown their utter contempt for the Constitution? But the exercise of such power would be the lawless act of a lawless government, without even the slightest pretense to Constitutional legitimacy. It would be a tyranny of force, a dictatorial usurpation of power aided and abetted by mass public hysteria. Such an act of lawlessness would be the final nail in the coffin of our Constitution, and the final abandonment by our government of the Rule of Law. And it will toll the final death-knell of our Freedom.
As a nation, we are already dangerously far along the road towards accepting the unbridled rule of force by our government. We are increasingly governed by policies established, not by laws duly enacted by elected legislators, but by judicial edicts arising from lawsuits, and by mandates from unelected and unaccountable regulatory bureaucrats. We watch our government move from one lawful industry to another, ignoring the legislative process and imposing its will by regulation and the threat of lawsuits, leaving its victims only the choice between surrender and bankruptcy.
First it was tobacco, now firearms, next perhaps alcohol, sport utility vehicles and maybe all automobiles, pharmaceuticals, fast foods…the list is literally endless. And that list grows longer as those bureaucrats learn that they can get away with imposing their will and ideological agenda through force, intimidation, and the threat of lawsuits. And as they do so, our democratic institutions, and the will of the People of the country, become increasingly superfluous, except to the extent that the people are needed as props to supply the necessary mob hysteria. We watch our government demonizing people, groups, entire industries, for the purpose of whipping up a mob frenzy to validate its attacks. And we remain silent.
What will be the next target of vindictive federal potentates? We don't know, we only pray that it will be someone else and not us, and that they will leave us alone for a little while longer. That is no way for a free People to live. That is how slaves under totalitarian dictatorships live. From where does a president, or any government bureaucrat, get the authority to decide that a legal product, wanted and used by millions of Americans, should no longer exist? One firearms manufacturer (Colt) has already been driven out of the business of selling its products to private citizens entirely; another (Smith & Wesson) has been bludgeoned into an agreement that will probably lead to the same result. From where does any government bureaucrat get the authority to destroy lawful companies simply because that bureaucrat doesn't like the product being sold? In a free society, governed by a Constitution and the Rule of Law, government bureaucrats do not have that authority. But we have allowed them to seize the power to do exactly that.
Whether we govern ourselves by the Rule of Law, the Constitution, and reasoned debate; or allow ourselves to succumb to mass hysteria and the tyrannical rule of unbridled government force, is still up to us. Although dangerously weakened, the Constitution and the Bill of Rights have not yet been repealed. We still have the right to vote tyrannical government officials out of office, and although our votes are increasingly diluted by electoral fraud, and by the votes of non-citizens and felons, that right has not yet been taken from us. We still have, for now, the right to speak out against those who trample our rights; we still have, for now, the right to contribute money and support to those legislators and would-be legislators who understand and respect the Constitutional restraints on their authority. But as government power and government lawlessness grows, and as our Liberties shrink in consequence, our power to control our government is rapidly disappearing. By our silence, we are selling ourselves and our children into bondage.
From where do the gun banners presume to get the legitimate authority to ban the individual right to keep and bear arms? It is clear that the Second Amendment's reference to "militia" will not suffice, since the Founders clearly described the nature of the 18th century militia; the State constitutions, following the intent of the Second Amendment, clearly demonstrate that understanding; and the Bill of Rights was designed not to limit the rights protected by the Constitution, but to further enhance and protect those rights. It is clear that the "general Welfare" clauses will not suffice, since both James Madison and Thomas Jefferson clearly explained that the "general welfare" concept must operate within the boundaries of the enumerated powers, or else the Constitution itself means nothing; and disarming citizens was clearly not one of the enumerated powers. It is clear that the idea of an "evolving, growing" Constitution will not suffice, since the whole point of a written Constitution is to serve as an immutable structure of rules that remains in force until that structure is changed by the formal amendment process provided for by the Constitution itself. A Constitution that can be "redefined" by the very institutions it is intended to restrain is no Constitution at all.
On what Constitutional foundation do the opponents of the right to keep and bear arms support their beliefs and their agenda? There is none. But the totalitarians in our government and among our population care nothing for the Constitution, which they would like to finally repeal in its entirety; or about the Rule of Law, which they will bend, twist, or ignore as it suits their purpose. They care only about power. The Founders, in their wisdom, gave us the tools to preserve our Freedom against such unbridled government power, and to do so within the structure of our Constitution.
A new link will be established at the home page of this newsletter to combat lies and hysteria with facts. The information will be expanded from time to time, and will contain evidence from a host of sources of exactly what the Founders of our republic intended when they wrote that "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 information is here. What we choose to do with it depends on how much we still value our Freedom.
FOR MORE INFORMATION…
The Right To Keep An Bear Arms Link:
A Century of
on the Constitution:
Notes on the
Debates in the
Links to individual State Home
Pages and State
Federal and Supreme Court Cases:
2 may 2000