The right to arm and organize

Memorize: "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." — Second Amendment to the Constitution of the United States

1.3.1 The text of the Bill of Rights

Up to this point we have considered moral principles and human opinions, not the law. To be sure the Declaration of Independence represents a well-nigh universal opinion existent in the American colonies in 1776. But we have yet to establish the legal basis for forming militias. The Bill of Rights is the cornerstone of American liberty and the final court of appeal for our personal freedoms. Since many citizens are not familiar with the Bill of Rights, and since our public education system does an inadequate job of expounding upon them, the complete text is reproduced here for reference.

Article I — Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article II — 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.

Article III — No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article IV — The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article V — No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article VI — In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Article VII — In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall otherwise be reexamined in any Court of the United States, than according to the rules of the common law.

Article VIII — Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article IX — The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article X — 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.

These are some of the "unalienable rights" we possess as human beings and which must be protected by the state and federal governments. They are not, necessarily, all-inclusive as Article IX indicates and as subsequent amendments (like Article XIII against slavery) have demonstrated. But they are the bare minimum of what we are Constitutionally guaranteed.

Note also that the Constitution provides for the legal amendment of itself (Article V of the main text). But while there are many parts of the Constitution that are subject to debate and amendable, the Bill of Rights are not. The Declaration of Independence rejects the notion that genuine rights can be annulled by any government or any majority.

We may, for instance, proceed on Constitutional grounds to debate whether the President's term should be four or six years, whether Congress should have the power to lay and collect income taxes, and whether the Supreme Court should be appointed or elected. But we cannot ever consider licensing free expression, invading homes without warrants being issued on probable cause, convicting those arrested without trial, or the like.

1.3.2 The meaning of the Bill of Rights

There are three concepts essential to a proper interpretation of the Bill of Rights. These are original intent, the people, and rights.

Original intent

There are basically two ways to interpret any document written by someone else. The wrong way is to interpret it the way we want to interpret it in light of our personal prejudices and cultural pressures. This is routinely the way our present Congress and court system actually do interpret the Constitution. The right way is to interpret it as those who wrote it intended it to be interpreted. This is what is meant by the Constitutional doctrine of original intent. According to this approach, we are not so much interested in the legal precedents handed down in previous court cases as we are in the historical context of drafting and ratifying the Constitution.

Now of course there are situations and issues that have come up in modern times which the Framers could not have known about and therefore had no direct intentions concerning. But their intent should be held to as closely as possible. For instance, the Framers could not have possibly envisioned the advent of radio and television. Yet their intention was for all forms of press to be free and therefore radio and television journalism should remain free even though they are a new technology. The Framers also could not have anticipated the invention of the telephone or wire tapping. But their intention was certainly that such forms of communication to be free from unreasonable surveillance and searches via wire taps. In the same way, automatic weapons were not a reality in the eighteenth century. But that does not mean that they are not protected by the Second Amendment. To say that machine guns are not protected because they were non-existent when the Constitution was drafted would also mean that radio and televisions journalism are not protected forms of press, and that telephone conversations may be recorded without warrant because these are all new technological developments.

This tangent shows that what we mean by original intent is not that we have exactly and only the same circumstances in mind as the Framers but that we have exactly and only the same principles in mind. Circumstances, technology, and culture may change, but Constitutional principles do not and cannot.

Now the reason that seeking original intent is so important to our Constitutional rights is that ignoring this principle inevitably leads to infringing our rights. Rights are routinely violated by the federal government because the courts ignore original intent and interpret the Constitution to suit their whims or to satisfy public pressure.

Now let's say that you and some friends sit down to lay a board game like Monopoly. Perhaps you agree to play by the rules. Or perhaps you unanimously agree to play by "house rules" and modify a few rules here or there. Either way, all of you agree to proceed with the game on the same basis. Now if some of the players — even a majority — choose to reinterpret the rules later in the game this would be viewed as cheating. If such cheating persisted to the point of altering all the rules in the majority's favor and against the minority, then one could hardly blame the minority from quitting the game. Cheating is cheating even if it is done by a vast majority!

Today, the Bill of Rights is being reinterpreted by political officials for the "benefit" of the majority. But such interpretations are clearly contrary to the true meaning of the Bill of Rights. It doesn't matter how strong a majority wants to change these rules, it is cheating nevertheless to change the rules by reinterpretation instead of making legal amendments to the Constitution.

It is clear that our Congress and court system generally reject the doctrine of original intent from the following facts:

• The emphasis on Constitutional cases is virtually always on legal precedent rather than on the historical background. What matters to the Supreme Court is what they have previously decided, not what the Framers intended.
• Those who assert legal cases on the basis of original intent instead of legal precedent are ridiculed and opposed as dangerous radicals. (A good example of this is the outpouring of opposition to Richard A. Epstein's book, Takings: Private Property and the Power of Eminent Domain. It is considered subversive because it argues from the Constitution that our present tax structure and welfare programs violate the intended meaning of the Fifth Amendment.)
• Congressmen frequently ignore whether or not a pending bill is Constitutional when they consider voter for or against it. What matters to them is the prevailing public opinion, not the Framers' opinions.
• Judges who openly hold to the idea of original intent, like Robert Bork, are rejected by the Senate for confirmation to the Supreme Court exactly because of their method of interpreting the Constitution.

It is clear that any approach to interpreting the meaning of the Constitution apart from original intent is futile. Apart from what the Framers meant there is no rule of law. If we can make it mean whatever we want it to mean, then there is no way of coming to agreement over a controversial or divisive issue since controversy means by definition that we disagree on what is right. Apart from original intent, we break faith with those who founded this great nation. How do you like it when people interpret the Bible to suit their fancy instead of as God meant it? How would you like it if your lawyer and heirs simply reinterpreted your will to suit their personal greed? Documents mean what their authors meant!

The only way that the Constitution has any meaning and can serve as the governing document of this country is if we follow its original intent.

"The people" means individuals

The next idea we must examine to understand the Bill of Rights is "the people." The Bill of Rights recognized three entities which are to be governed and united under the Constitution. First, there is the United States which refers to the federal government. Second, there is the states which refers initially to the first thirteen and now to the fifty state governments. Finally, there is the people which refers to individual citizens, not the federal or state governments. It is "the right of the people to peaceably assemble." It is "the right of the people to keep and bear Arms." It is "the right of the people to be secure in their persons, houses, papers, and effects." And other unmentioned rights are to be "retained by the people."

All the rights of the people, indeed all of the first nine amendments, are rights we have as individuals and are limitations on the state's powers.

This is a very important point. The framers were very clear and consistent in who they attributed certain rights to. "The people always refers to individuals, not groups or governments. Indeed, the first nine amendments are solely rights guarantied to the people. Only the Tenth Amendment guaranties rights to state governments, and none, count them, none, recognize any rights of the federal government. The whole of the Bill of Rights was intended as limitation of government, not an empowering of it. So we do great violence to the intended meaning whenever we twist "the people" to mean collective groups or state governments.

The concept of rights

This brings us to the concept and nature of rights. Rights are not a privilege that can be taken away. Nor are they franchise granted by the government. A right is something a human being possesses as a birthright given by God. They cannot be denied, legislated away, or amended into oblivion by any majority short of 100 percent.

The fact that rights are unalienable by any government and cannot be outweighed by the interests of the majority is incontestable.

• God is greater than any government. "Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God" (Romans 13:1). Therefore, governments and other people have no authority to take away anything — including rights — given by God.
• God has in fact given human beings certain rights. For instance, following the Ten Commandments, Exodus 21 outlines our right to life and Exodus 22 outlines some of our property rights.
• The Declaration of Independence says so. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men ..."
• The Ninth Amendment to the Constitution says so. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So even the Constitution recognizes that it does not and cannot grant or take away rights but can only recognize and guaranty them.
• The common notion of human rights implies as much. We often talk about some foreign government or regime depriving its citizens of basic human rights. This has no meaning if it is the government or the ruling majority that grants rights. If the ruling authorities grant rights, then by definition no government could ever violate them.

We do not have majority rule. The whole Constitution — with its system of checks and balances as well as the rights of the people — is designed to prevent personal liberties from being by a tyranny of the majority.

1.3.3 The structure of the Bill of Rights

The primary right of the people is personal liberty. All government functions are designed to insure personal liberties. The Constitution's Preamble states the Constitution's (and thus the government's) purposes:

"PREAMBLE: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America."

All of these purposes serve the final purpose of securing liberty: justice is established so institutions and majorities will not abuse our liberties. Domestic tranquility is secured lest criminal elements trample liberties. The common defense is provided for so foreign powers will not invade and enslave us. The "general welfare" (which benefits everyone, not select groups) must be promoted for the sake of fostering liberty. (Roads and mail, for example, benefit all citizens by allowing free movement, trade, and communication.) These are the sole legal purposes of the federal government and each is subordinate to maintaining the blessings of liberty.

This pattern of subordinating everything to personal liberties is also found in the Bill of Rights. The First Amendment protects freedom of religion, speech, and the press. The remainder of the Bill of Rights is subordinate to free expression, not in the sense of being less important, but in the sense of insuring First Amendment rights. Therefore the Second through Tenth Amendments are designed to protect the First Amendment.

• Article II: Gun rights are the "teeth" of the Bill of Rights, meaning that the people are empowered to enforce it against being infringed.
• Articles III, IV, and V: Property rights give us a limited sphere of "personal sovereignty" where we can live freely without intervention.
• Articles V, VI, VII, and VIII: Legal rights prevent the government from persecuting those who speak out against federal policies or practices.
• Article IX: The rights retained by the people are anticipated as a contingency against the government inventing all sorts of new powers.
• Article X: State rights divide and dilute the powers of the federal government. The more centralized the power the greater the tyranny.

The Bill of Rights has an integrity that can only be maintained as each of its part remain intact. Eliminate a part, and the whole will crumble.

1.3.4 The meaning of the Second Amendment

Now let's examine the meaning of the Second Amendment as it was originally intended as an integral to the whole of the Bill of Rights.

"Article II: 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."

• "A well regulated Militia" does not refer to the regular army. It would be absurd to recognize the federal government's prerogative to raise an army in the Bill of Rights since: (a) It is presumed that all governments raised armies. (b) Since Article II amends the Constitution which already recognizes this prerogative. And (c) since the Bill of Rights is in its entirety a limitation upon, not an empowering of the federal government. Nor does it refer to a state's national guard. Had the Framers meant state militias, they would have not connected the militia with the right of the people to bear arms. It does mean a well-organized army of the people by the people. The word militia originally legally meant (Virginia Bill of Rights, Section 13) and still legally means (U.S. Code, Title 10, Section 31) the whole able-bodied citizenry of the country, not the formal armed forces of the United States. Therefore, "A well regulated Militia" is a well-organized citizens' army, not a well-controlled standing army.
• "Being necessary to the security of a free state." It does not say, "being necessary to the security of a crime-free state" nor does it say "being necessary to the security of a free hunting state." Thus, self-defense and hunting are not protected, per se (although these are legitimate derivative activities of gun owners). The reason that the right of the people to bear arms and form militia is protected is to secure a free state. Without the ability of the people to rise up against the growing tyranny of a government, there is nothing to stop the tyranny of the government growing! This intention is made explicit in Section 13 of the Virginia Bill of Rights which clearly influence the development of Article II of the Bill of Rights.
• "The right." As we have seen, rights are God-given and governments are formed to protect rights, not to grant them or take them away. Thus the right to bear arms is not something that the government can legitimately legislate away through gun regulation, registration, licensing, taxation, or prohibition.
• "Of the people." Consistent with the view that "Militia" refers to an army of the people by the people, the Second Amendment recognizes the right of the people, or private individuals, to keep and bear arms. This right is possessed by people independently of membership in any government-controlled armed force or law enforcement agency.
• "To keep and bear." Notice that we have the right both to keep and bear arms. The Framers did not waste words but were very concise in all their texts. So clearly they intended to say that keeping and bearing arms are two different things, both of which are protected. Now the keeping of arms is ownership and possession of arms on your property. The bearing of arms is the carrying of arms with you off of your property. So you have the right to carry weapons with you as well as to own them. Any federal, state, or local law that prohibits bearing firearms on your property or in public is unconstitutional. (Of course, people like business owners may prevent you from bearing arms on their property by exercising their own property rights.)
• "Arms." What are these arms that are to be protected? Clearly they are those that are useful and effective in maintaining an armed militia. In other words, it is military-style weapons like assault rifles, submachine guns, and combat shotguns that are explicitly protected, not just hunting and target shooting weapons. Whatever type of firearms are the standard-issue weapons of the armed forces, these are the weapons that you and I have the right to own. The more militarily effective a firearm is, the more it is protected by the Constitution. This is not to say that you and I should be permitted to own anything used by the army. Just as the citizen of 1789 did not own canons and ships-of-the-line, today's citizen should not own M-1 Abrams tanks and Stinger anti-aircraft missiles. But just as the citizen and the soldier were armed with the same musket then, so citizens should be able to keep and bear Colt M-16 assault rifles now.

Select-fire assault rifles like the M-16 are the most Constitutionally protected firearms precisely because they are standard infantry weapons.

• "Shall not be infringed." "Infringe" means to encroach upon and does not necessarily mean to totally do away with. There are many ways that the right to keep and bear arms can be infringed: regulation limits gun ownership by controlling the production and sales of firearms. Licensing means that an individual is permitted to own or carry weapons. Registration means that an individual's possession of a particular weapon with a serial number is recorded. (Gun businesses are regulated, gun owners are licensed, and guns themselves are registered.) Taxation restricts gun ownership, particularly among the poor, by increasing the cost. Prohibition is either an outright ban of gun possession or the limitation of guns that can be bought.

All of these — regulation, licensing, registration, taxation, prohibition — are totally unconstitutional with respect to arms useful to a militia.

• Regulation of guns is illegal if it is designed to reduce the supply or availability of them to the public. There is no difference in principle between limiting production and sales of guns and banning possession of guns. Both have the same effect of disarming citizens.
• Licensing means the government gives permission to do something like driving a car and is totally contrary to the nature of a right. What would you think about the government "licensing" your religion or free speech? Having permission and having the right are incompatible.
• Registration means you must list your gun with the government which is also contrary to a right. How would you feel about Christians having to register Bibles and newspapers having to register printing presses?
• Taxation of guns is also illegal if the taxes exceed the normal sales tax because this artificially raises the cost and limits the citizens' ability to purchase guns. The $200 transfer tax on automatic weapons is a good example of an illegal tax intended to restrict ownership.
• Prohibition is clearly unconstitutional as the ultimate infringement of gun rights since it absolutely bans their possession and use. Even limiting gun purchases to one gun per month is an infringement of gun rights since it slows the arming of a militia when a crisis develops.

1.3.5 Discussion questions

How much of the Bill of Rights were you familiar with before reading this section? Which of these rights were you unaware of or surprised by? Why are these rights so important?

Describe what we mean by original intent. Why is it critical that we interpret the Bill of Rights this way instead of any way we see fit?

What are some Constitutional limits on majority rule? Why are such limits placed on the majority? Are such limitations justified? Why? When do the interests of the majority outweigh the rights of the individual?

Which one or two rights guarantied by the Constitution are most "near and dear to your heart"? Why? Does the fact that you decide not to exercise some of your rights diminish their importance? Why?

Main ideas of this section

The only way that the Constitution has any meaning and can serve as the governing document of this country is if we follow its original intent.

All the rights of the people, indeed all of the first nine amendments, are rights we have as individuals and are limitations of the state's powers.

We do not have majority rule. The whole Constitution — with its system of checks and balances as well as the rights of the people — is designed to prevent personal liberties from being denied by a tyranny of the majority.

The Bill of Rights has an integrity that can only be maintained as each of its parts remain intact. Eliminate a part, and the whole will crumble.

Select-fire assault rifles like the M-16 are the most Constitutionally protected firearms precisely because they are standard industry weapons.

All of these — regulation, licensing, registration, taxation, prohibition — are totally unconstitutional with respect to arms useful to a militia.

Further reading

At the very least, you should obtain, read, and absorb a copy of the Constitution of the United States in its entirety.

If you desire to read and study these issues in more depth, I recommend the following books available from the Free Militia:

Barnett, Randy E. (editor). The Rights Retained By the People: The History and Meaning of the Ninth Amendment (Fairfax, Virginia, George Mason, 1989), 416pp.

Cord, Robert L. Separation of Church and State: Historical Fact and Current Fiction (Grand Rapids, Michigan, Baker Book House, 1988) 315pp.

Epstein, Richard A. Takings: Private Property and the Power of Eminent Domain (Cambridge, Massachusetts, Harvard University Press, 1985) 362pp.

The Gun Rights Activist, "The Epistemology of Liberty," contributed by Herb Campbell, Ron Jongeling, Bruce Knodel, and Rev. Steve Lineman (Hermatage, Pennsylvania, 1994).

Norval, Morgan. Take My Gun If You Dare! (El Dorado, Arkansas, Desert Publications, 1979), 103pp.

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