March 16, 2008
Later this week the Supreme Court will rule on the Second Amendment. “The nine justices of the highest court in the land will meet Tuesday to hear arguments on who the Founders Fathers intended when they called for the Second Amendment right to keep and bear arms: a well regulated militia or all individuals,” reports Fox News.
It all hinges on that word: militia.
“The awkward construction of the amendment — linking ‘a well regulated Militia’ to ‘the right … to keep and bear Arms’ — has spawned decades of debate about whether the framers of the Constitution meant to grant an individual right to own guns,” writes Chris Casteel for the Oklahoman.
Of course they did. And there should be no argument over the word militia.
“I ask, who are the militia? They consist of now of the whole people, except a few public officers,” explained George Mason during the Virginia Constitution Convention.
“A militia, when properly formed, are in fact the people themselves … and include all men capable of bearing arms,” declared Richard Henry Lee, a First Congress senator. “To preserve liberty, it is essential that the whole body of people always possess arms.”
“Who are the militia?” asked Tench Coxe, delegate for Pennsylvania to the Continental Congress. “Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
“Laws that forbid the carrying of arms,” wrote Thomas Jefferson, “disarm only those who are neither inclined nor determined to commit crimes.”
Antonin Scalia, the second most senior Associate Justice, is not listening, though. He seems to believe the states have the right to regulate the “sword,” as he wrote in his book, A Matter of Interpretation, a book appropriately entitled. Scalia wrote that he interpreted the amendment “as a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense,” but that does not exclude the states from doing so. For Scalia and Clarence Thomas, it all comes down to federal authority under the Commerce Clause, which gives Congress power to regulate commerce among the states.
If the Supremes decide to rule against the Commerce Clause as a federal intrusion, the states will be free to regulate against gun ownership and the heck with the Second.
“My assumption is that there are at least five votes for the proposition that the Second Amendment protects an individual right,” Yale University law professor Jack Balkin told ABC News. “But just because you say there is an individual right, you haven’t resolved the case…. Is it an individual right to keep and bear arms that might be useful in militia service, a right to keep and bear arms that might be useful for self-defense, or both?”
Certainly, self defense is part of the argument, as the founders knew. But there is another part, rarely if ever mentioned by “experts” trotted out to provide our opinions by the corporate media: the Second Amendment is primarily intended to defend against the tyranny of government.
“The Founders added the 2nd Amendment so that when, after a long train of abuses, a government evinces a methodical design upon our natural rights, we will have the means to protect and recover our rights. That is why the right to keep and bear arms was included in the Bill of Rights,” writes Alan Keyes. “In fact, if we make the judgment that our rights are being systematically violated, we have not merely the right, but the duty, to resist and overthrow the power responsible. That duty requires that we always maintain the material capacity to resist tyranny, if necessary, something that it is very hard to do if the government has all the weapons.”
In a mere 48 hours, we will see if the Supremes agree.
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