The Constitutionality of Federal Gun Control Laws and the Question as to Whether Local Resolutions Are Appropriate | Eastern North Carolina Now

    If we accept the misguided notion that the Supreme Court is the final interpreter of the meaning and intent of the Constitution, then we have to accept that the decision in Dred Scott is the law of the land (which is still good Supreme Court jurisprudence by the way since it was only overturned legislatively, if you will, by constitutional amendment. The justices in that case didn't interpret the Constitution; rather, they used the bench for a most insidious function - to make social policy. Dred Scott was a slave who traveled with his slave master from a slave state to a non-slave state. He then challenged his bondage. The question, therefore, before the Court was not only whether he should be considered free but whether he even had the legal right (as a black man) to challenge his slave status. Justice Taney wrote the opinion:

    "We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

    It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognized as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

    It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."

    When the Supreme Court itself acts outside and above the bounds of constitutional power, which party can declare such?

    That was a problem that Thomas Jefferson's addressed in 1804: "The Constitution meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

    The fact is that the men who drafted our founding documents - James Madison and Thomas Jefferson - did not subscribe to the notion that only the federal courts could determine constitutionality. Jefferson wrote this: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government;.... that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers." [Resolutions of 1798].

    James Madison wrote: "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition." [Report of 1800]

    The Impact of the American Revolution on the Drafting and Intent of the Second Amendment --

    A third inquiry might be a look at the (historical) events that shaped and guided the Founders and the drafters of the Second Amendment.

    As we all remember from our early American history, the Boston Tea Party prompted a very strong response from the King of England. It would be the series of intolerable acts known as the Coercive Acts which would offend so greatly the colonists notion of freedom that independence became the only solution.

    All of the particular provisions of the Coercive Acts were offensive to Americans, but it was the Quartering Act and the possibility that the British might deploy the army to enforce them that primed many colonists for armed resistance. The Patriots of Lancaster County, Pennsylvania, resolved: "That in the event of Great Britain attempting to force unjust laws upon us by the strength of arms, our cause we leave to heaven and our rifles."

    The Royal Governor of Massachusetts, General Thomas Gage, had forbidden town meetings from taking place more than once a year. When he dispatched the Redcoats to break up an illegal town meeting in Salem, 3000 armed Americans appeared in response, and the British retreated. Gage's aide John Andrews explained that everyone in the area aged 16 years or older owned a gun and plenty of gunpowder. They could not tolerate this.

    Military rule would be difficult to impose on an armed populace. Gage had only 2,000 troops in Boston. There were thousands of armed men in Boston alone, and more in the surrounding area. Gage's response to the problem was to deprive the Americans of gunpowder.

    Although colonial laws generally required militiamen (and sometimes all householders, too) to have their own firearm and a minimum quantity of powder, not everyone could afford it. Consequently, the government sometimes supplied "public arms" and powder to individual militiamen. Policies varied on whether militiamen who had been given public arms would keep them at home. Public arms would often be stored in a special armory, which might also be the powder house.

    Before dawn on September 1, 1774, 260 of Gage's Redcoats sailed up the Mystic River and seized hundreds of barrels of powder from the Charlestown powder house. The "Powder Alarm," as it became known, was a serious provocation. By the end of the day, 20,000 militiamen had mobilized and started marching towards Boston. In Connecticut and Western Massachusetts, rumors quickly spread that the Powder Alarm had actually involved fighting in the streets of Boston, but accurate reports were provided just in time and war was temporarily averted. The message, however, was unmistakable: If the British used violence to seize arms or powder, the Americans would treat that violent seizure as an act of war, and would fight.

    Tension continued to grow as the British continued to seize firearms and gunpowder and block the importation of arms and ammunition to America in an effort to disarm the rebellious colonists.

    On March 23, 1775, Patrick Henry would give his famous fiery speech to the Virginia legislature, which had to meet in secret at St. John's Church in Richmond because the British were clamping down on their rights to govern themselves. In that speech, he delivered those famous words: "Give Me Liberty or Give Me Death!" What was the reason for those words? Well, at the time, King George had declared all 13 North American colonies to be in a state of open rebellion. Lord Dunsmore, the Royal Governor of Virginia, had ordered all the gunpowder in Williamsburg seized and stored aboard his ship anchored in the Virginia harbor, to keep it out of the hands local patriot forces. In his speech, Henry argued that the British plainly meant to subjugate America by force. Because every attempt by the Americans at peaceful reconciliation had been rebuffed, the only remaining alternatives for the Americans were to accept slavery or to take up arms. And so he urged that Virginia organize a militia to stand up to the British.

    In just 3 weeks, the American Revolution would begin.

    On the night of April 18, the royal governor of Massachusetts, General Thomas Gage was ordered by King George III to suppress the rebellious Americans, had ordered 700 British soldiers to confiscate weapons stored in the village of Concord and capture Sons of Liberty leaders Samuel Adams and John Hancock, who were both reported to be staying in the village of Lexington.

    As word of General Gage's intentions spread through Boston, it prompted the patriots to set up a messaging system to alert the countryside of any advance of British troops. Paul Revere arranged for a signal to be sent by lantern from the steeple of North Church - one if by land, two if by sea. On the night of April 18, 1775 the lantern's alarm sent Revere, William Dawes and other riders on the road to spread the news. The messengers cried out the alarm, awakening every house, warning of the British column making its way towards Lexington. In the rider's wake there erupted the peeling of church bells, the beating of drums and the roar of gun shots - all announcing the danger and calling the local militias to action. In the predawn light of April 19, the beating drums and peeling bells summoned between 50 and 70 militiamen to the town green at Lexington. As they lined up in battle formation, they heard the sound of the approaching Redcoats. Soon the British column emerged through the morning fog. At Lexington Green, one eyewitness report claims that British Major Pitcairn ordered the Bostonians to "Lay down your arms, you damned rebels, or you are all dead men." At that moment a shot was fired. It may very well have been accidental. Nonetheless, hearing the shot, British troops fired upon the small group of militia, killing eight men and wounding ten more. The militia then retreated into the woods. And so started the first battle in the American Revolutionary War.

    What transpired after the day of "the shot heard 'round the world" was perhaps more significant in some respects. That event was Gen. Gage's attempt to confiscate the arms of all the inhabitants of Boston. Disarming the militiamen in the countryside had a plausible purpose--the Crown was the "legitimate" government and the militiamen were engaged in rebellion. But to disarm every peaceable inhabitant of Boston without them having committed any unlawful act or threatening any transgression was conclusive evidence to the colonists, including many not yet committed to fight for either side, that their fundamental rights as Englishmen were being destroyed.

    What happened in the days leading up to skirmish on Lexington Green, when the British sought to disarm the colonists, and what happened in the days following Lexington and Concord, with the wholesale confiscation of firearms from the people of Boston, remained fresh in the minds of our Founders and framers. It would have a profound impact on them and play a major role in the construction and adoption of the Second Amendment.

    The Meaning of the Second Amendment -

    And a fourth question to ask is what was the meaning of the Second Amendment when it was passed (because each of our first ten amendments holds a special place in America's understanding of ordered liberty as the nation was congealed in 1788-89). The following are crucial points to be considered:

    (a) The 2nd Amendment to the Constitution of the United States reads as follows, "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 amendment, as written, is very clear. First the right to keep and bear arms is not subject to any qualification, conditions, or degrees. Secondly, the right shall (ie, "must") not be infringed. Since the amendment is a prohibition on government, it is a restraining order on government. Henry St. George Tucker, a lawyer who put his career on hold to fight the American Revolution, set out in 1790 to write an American edition of Blackstone's Commentaries on the Law of England. In 1803 he completed and published it. Commonly referred to as "American Blackstone," it was the definitive treatise on American law and became essential reading for every lawyer of the day. In explaining the American right to keep and bear arms, Tucker wrote these words: "The right of the people to keep and bear arms shall not be infringed and this without any qualification as to their condition or degree, as is the case in the British government." In the appendix to his text, Tucker provided a fuller explanation of the Second Amendment: "This may be considered as the true palladium of liberty.... The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. 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...."

    (b) The Preamble to the Bill of Rights, as with any preamble, states the intent and purpose of the particular amendments. The Preamble reads:

    "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

    RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution.."

    On December 15, 1791, Virginia became the 10th of 14 states to ratify, thus giving the Bill of Rights the two-thirds majority of state ratification necessary to make it legal.

    (c) The Second Amendment doesn't grant rights; it recognizes rights. The Second Amendment, which embodies the most fundamental right of self-defense, self-protection, and self-preservation, was considered by our Framers as obvious, "natural," and a "self-evident truth." The Declaration of Independence articulates clearly that while individuals have the inalienable right of Life, Liberty, and the Pursuit of Happiness, they also have the natural right to defend them. In fact, it is precisely the primary role of government. The Declaration states: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety..." According to the Declaration, the rights of self-defense, self-protection, and self-preservation are as fundamentally and inherently endowed as the rights to Life, Liberty, and the Pursuit of Happiness.

    The framers, tasked with defining the foundation of our new nation, were immersed in the prevailing republican thought of the day, as articulated in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, Jefferson, and others, which discussed "natural rights" in some detail. Others, known as the anti-Federalists, argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution. Alexander Hamilton summed the position well in Federalist Papers No. 28: "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair." [http://constitution.org/leglrkba.htm]

    (d) The Second Amendment also recognizes the right, power, and duty of the people to organize into militias and defend their state. Indeed, at the time the Second Amendment was adopted, it was understood that the people were the militia. George Mason said it best during the debates in the Virginia Ratification Convention on June 16, 1788: "I ask, sir, what is the militia? It is the whole people.." [See Elliot's Debates, Vol. 3] In Federalist Papers No. 29, Alexander Hamilton indicated that a well-regulated militia is the people in a state of preparedness. Tench Coxe, in his article "Remarks on the First Part of the Amendments to the Federal Constitution," (written under the "A Pennsylvanian") in the Philadelphia Federal Gazette, June 18, 1789, explained: "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as 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 [the Second Amendment] in their right to keep and bear their private arms."

    And what was the purpose of a state militia? Our Founding Fathers understood an armed citizenry was necessary for more than just protecting the state's security and interests. US Rep. Elbridge Gerry (Mass) spoke on this topic when debating the Second Amendment from the floor of the Congress after James Madison proposed the draft of the Bill of Rights: "What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." [See Annals of Congress at 750; August 17, 1789] George Mason repeated the same admonition in the Virginia Ratification Convention (June 1788): " ... to disarm the people - that was the best and most effectual way to enslave them."

    And Noah Webster effectively articulated the principles underlying our Constitution and Bill of Rights in his publication An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787). He wrote: "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in 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 band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." But perhaps no one is more qualified to explain the intent of the Second Amendment than Thomas Jefferson who was the man responsible for finally convincing James Madison to draft them. Jefferson wrote: "No Free man shall ever be debarred the use of arms." In 1787, he wrote: "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms." [Letter to William Stephens Smith; See Jefferson's Papers 12:356] Even Supreme Court Justice Joseph Story understood the purpose of an armed citizenry (and hence the intent of the Second Amendment): "The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation of power by rulers. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally ... enable the people to resist and triumph over them." [Commentaries on the Constitution of the United States, p. 3:746-7, 1833

    (e) While the U.S. Constitution does not adequately define "arms," we have a clear understanding of its historical context. The Federalist Papers and other writings of the Founding Fathers and their contemporaries mention "arms" to suggest it has a rather broad definition. For example, in Federalist No. 29, Alexander Hamilton emphasized the deterrent effect of a citizen militia against the U.S. Army: "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 the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." A reading of Federalist No. 26 will help us understand that when our Founders envisioned the fundamental right of individuals to take up arms against an oppressive government, they understood that sometimes the oppressor was protected by state-of-the-art weaponry (as were the British forces). In other words, the body of citizens must be armed and disciplined accordingly to be a formidable force against a tyrannical government. When the Second Amendment was adopted, the common understanding was that "arms" comprised those weapons that could be carried and discharged/operated by hand, including muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common-law definition reads "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons. It would not, however, include heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. The standard, therefore, has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly. [http://constitution.org/leglrkba.htm]

    (f) Nowhere in the Constitution of the United States is the federal government vested with the authority to impose acts, laws, executive orders, rules, or regulations relating to civilian firearms, firearm accessories, or ammunition. The right to "keep and bear arms" is absolute and not subject to any qualification, conditions, or degrees. [Although some may argue that the government has some regulatory power under the Commerce Clause, the Bill of Rights was adopted as a further limitation on this power; See (b)] Samuel Adams emphasized this point in Massachusetts' Ratification Convention (January 1788): "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 ... " Thomas M. Cooley, renowned jurist (1824-1898), wrote in his text General Principles of Constitutional Law, Third Edition [1898]: "The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."

    In light of the authority above, it would appear that all federal acts, laws, executive orders, rules or regulations tending to infringe upon the right of law-abiding persons to have and bear firearms, firearm accessories, or ammunition are in violation of the 2nd Amendment, as well as the 10th Amendment and Supremacy Clause, of the US Constitution.