Original Intent and the Second Amendment

Please re-read before the study of the Second Amendment

How To Read and Study the Constitution
By the Founding Fathers


Original Intent

It was – typically still is – a fundamental maxim of law to determine the intent of the authors of a statute before attempting to apply it.

1. Founder Noah Webster – “ Not only misinterpretation but even serious error can result when original meanings are ignored.”

2. Justice Joseph Story  (his father was an “Indian” at the Boston tea party) founder of Harvard Law School – called the foremost of American legal writers, Supreme Court Judge – “ The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense of the terms and the intentions of the parties.”

3. Justice James Wilson, one of only 6 FF who signed both the Declaration of Independence and the Constitution, second most active member of the Constitutional Convention, Speaking 168 times, original S.C. Justice, co-author of America’s First Legal Commentaries on the Constitution – “ The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”

4. Thomas Jefferson, President – “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

5. James Madison “I entirely concur in the proprietary of resorting to the sense in which the Constitution was accepted and ratified by the Nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of it’s powers….what a metamorphosis would be produced in the code of law if all it’s ancient phraseology were to be taken in it’s modern sense.”

6. Noah Webster, first to call for the Constitutional Convention, responsible for the copyright and patent protection clause in the Constitution, compiled the first dictionary defining over 70,000 words, and a master of language learning over 20 languages –

“ In the lapse of two or three centuries, changes have taken place which in particular passages … obscure the sense of the original languages … The effect of these changes is that some words are … being now used in a sense different from that which they had …[and thus] present wrong signification or false ideas. Whenever words are understood in a sense different from that which they had when introduced … mistakes may be very injurious.”

Alexander Hamilton said all that is needed to understand a certain phrase or clause in the Constitution is to apply the “unsophisticated dictates of common sense”.

SECOND AMENDMENT

INSTRUCTOR’S NOTE: What was the final straw of all the grievances against the English Crown that finally started the Revolutionary War?

Was it taxation without representation, high tariffs, corrupt British officials, or the quartering of troops among the colonists?  NO!  The Revolutionary War began when British troops were sent to Lexington and Concord to confiscate American’s firearms and gunpowder!  Gun confiscation was the match that lit the Revolutionary War.

Second Amendment – The right to keep and bear arms.

“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 whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals…It establishes some rights of the individual as unalienable and which consequently, no majority has the right to deprive them of.” – Albert Gallatin, October 7, 1789, New York Historical Society

“…the people are confirmed by the next article in their right to keep and bear their private arms” – from article in the Philadelphia Federal Gazette June 18, 1789 at 2, col.2.

“Last Monday a string of amendments were presented to the lower house; these altogether respect personal liberty…” – Senator William Grayson of Virginia

“That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of The United States who are peaceable citizens from keeping their own arms…” – Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850).

“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to 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 any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” – William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

The right of the citizens to keep and bear arms has justly been considered, as the palatium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” – Joseph Story, called the father of America’s Jurisprudence, Commentaries on the Constitution of the United States; With a Preliminary Review of the Constitutional History of the Colonies and States before the Adoption of the Constitution [Boston, 1833].

“Firearms stand next in importance to the Constitution itself.  They are the American people’s liberty teeth and the keystone under independence.” – George Washington

Commentaries on the ‘Militia’:

“I ask, sir, what is the Militia?  It is the whole people, except for a few public officials.” “To disarm the people is the best and most effectual way to enslave them.” – George Mason, the father of the Bill of Rights

“Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people” – Trench Coxe, Pennsylvania Gazette, Feb. 20, 1788.

“The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States …Such men form the best barrier to the liberties of America.” – Gazette of the United States

“The right of the people to keep and bear…arms shall not be infringed.  A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country…” – James Madison, Annals of Congress 434, June 8, 1789

“What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.” – Rep. Elbridge Gerry of Massachusetts

“A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms. To preserve liberty it is essential that the whole body of people always possess arms.” – Richard Henry Lee, Letters from The Federal Farmer, 1788 p.169

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe.  The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops…” –Noah Webster, An Examination of Leading Principles of the Federal Constitution, 1787

“As civic rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” – Tench Coxe, Philadelphia Federal Gazette, June 18, 1789

“…but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights…” -Alexander Hamilton speaking of standing armies in Federalist No. 29.

“To trust arms in the hands of the people at large has, in Europe, been believed…to be an experiment fraught only with danger. Here by a long trial it has been proved to be perfectly harmless…If the government be equitable; if it be reasonable in its exactions; if proper attention be paid to the education of children in knowledge and religion, few men will be disposed to use arms, unless for their amusement, and for the defense of themselves and their country.” – Timothy Dwight, Travels in New England and New York [London 1823]

“Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” – St. George Tucker, in his edition of ‘Blackstone’s Commentaries,’ 1:300 (1803).

“Suppose that we let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal: still it would not be going to far to say that the State governments with the people at their side would be able to repel the danger…half a million citizens with arms in their hands” – James Madison, The Federalist Papers

“The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops.” – Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787)

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” – James Madison, The Federalist Papers, No. 46

COMMENTARIES ON RIGHT TO BEAR ARMS

“No free man shall ever be debarred the use of arms.  The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” – Thomas Jefferson papers

“It is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to posses the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it.” – James Madison, Federalist No. 46.

To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them.” -Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights, Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)

“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” – Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836

“The best we can hope for concerning the people at large is that they be properly armed.” – Alexander Hamilton, The Federalist Papers at 184-8

“The people are not to be disarmed of their weapons.  They are left in full possession of them.” – Zachariah Johnson

“A free people ought…to be armed…” – George Washington

“…the people have a right to keep and bear arms.” – Patrick Henry and George Mason, 3 Elliot, Debates at 386

“Arms in the hands of citizens [may] be used at individual discretion for the defense of the country, the overthrow of tyranny, or in private self-defense…” – John Adams

“The great object is that every man be armed” and “everyone who is able may have a gun.” – Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia, ... taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386

“Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater … confidence than an armed man.” – Thomas Jefferson, quoting Cesare Beccaria in On Crimes and punishment (1764).

“The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property.  The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…Horrid mischief would ensue were one half the world deprived of the use of them…” – Thomas Paine, Writings of Thomas Paine, at 56,1894, Thoughts on Defensive War (1775).

“When firearms go, all goes – we need them every hour.” – George Washington

“A strong body makes the mind strong.  As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind.  Let your gun therefore be the constant companion of your walks.”Thomas Jefferson, The Encyclopedia of T. Jefferson, 318, Foley, Ed.

When speaking in Virginia in a fiery speech for freedom, Patrick Henry proclaimed; “… an appeal to arms and to the God of hosts is all that is left us!”

Warnings

“A free people (claim) their rights as derived from the laws of nature, and not as the gift of their chief magistrate.” – Thomas Jefferson papers

Note: … “lawyers are what make people free.” –  Atty. Gen. Janet Reno

“The beauty of the second amendment is that it will not be needed until they try to take it.” – Thomas Jefferson, Thomas Jefferson Papers

“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crime.” – Cesare Beccaria, quoted by Thomas Jefferson

“The natural progress of things is for liberty to yield and governments to gain ground.” – Thomas Jefferson

Whenever “Guard with jealous attention the public liberty.  Suspect everyone who approaches that jewel.  Unfortunately, nothing will preserve it but downright force. you give up that force you are inevitably ruined.” – Patrick Henry, Debates in the Several State Conventions, Virginia’s Convention to Ratify the Constitution, 1788

“And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms … The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants” – Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy p. 20, S. Padover ed., 1939

“The people never give up their liberties but under some delusion.” – Edmund Burke (1784)

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin Historical Review of Pennsylvania. [Note:   This sentence was often quoted in the Revolutionary period. It occurs even so early as November, 1755, in an answer by the Assembly of Pennsylvania to the Governor, and forms the motto of Franklin’s “Historical Review,” 1759, appearing also in the body of the work.–Frothingham: Rise of the Republic of the United States, p. 413. ]

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” – Thomas Jefferson

“Fear is the foundation of most governments.” – John Adams

“…there is no point in our ancestors speaking to us – unless we know how to listen.” – Mortimer J. Adler

“What you have inherited from your forefathers, you must first win for yourself if you are to possess it.” – Goethe

INSTRUCTOR’S NOTE: The framers of the Constitution recognized the possibility that the Militias would be needed to mount armed resistance to the Federal government, if the Feds were to usurp powers not granted to it.  Yes…they actually contemplated civil war as a necessary and legitimate response to Federal tyranny. Joseph Larson

… All laws which are repugnant to the Constitution are null and void …” U. S. Supreme Court, Marbury v. Madison, 5 U. S.  (2 Cranch) 137 (1803)

What the Courts Have Said

About the Right to Keep and Bear Arms
“To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.” [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)] 

“For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.” [Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)

” `The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.” [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]

“The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff.” [People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)]

“The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions.” [State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)]

“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]

INSTRUCTORS NOTE: “If the Constitution is to be construed to mean what the majority at any given period in history wish the Constitution to mean, why a written Constitution?” Frank J. Hogan, President, American Barr Assn. 1939

In 1935 Adolf Hitler registered guns, becoming the first nation in history to have done so – and told his people that this would make “for a kinder, gentler, nation.”

“Political power grows out of the barrel of a gun.”– Mao Tse-tung

Fact: FBI reports 1992 -“Violent crime rates are highest overall in states with laws severely limiting or prohibiting the carrying of concealed for self-defense.”

“If you love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace.  We ask not your counsel or your arms.” Samuel Adams, Father of The American Revolution