Americans have been very poorly served by our educational system. This is evidenced by the fact that allegedly educated men and women in various levels of government seem convinced that the Second Amendment was designed to indulge their occasional pheasant hunt, or outfit their burly armed guards with firearms to keep away the riffraff.
This was not remotely what the Founders intended.
Tenche Cox, Pennsylvania delegate to the Continental Congress, twice explained the purpose of the Second Amendment to his fellow citizens, first writing in The Pennsylvania Gazette, on Feb. 20, 1788.
The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the 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
Coxe was explicit: the Founders held that the militia were the people, and that Congress had no power to disarm the people. Further he defined that the citizens of this Republic should have military arms, as checks and balances against over-reach by both state and local powers.
Almost a year and a half later, Coxe wrote again to more explicitly highlight why Americans should have military arms in their possession as protection against government.
He did so in “Remarks On The First Part Of The Amendments To The Federal Constitution,” in the Philadelphia Federal Gazette, June 18, 1789.
As civil 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 next article in their right to keep and bear their private arms.
A decade later in 1799, Coxe wrote again in the Philadelphia Aurora as tensions arose between Federalists and Republicans:
Do you wish to preserve your rights? Arm yourselves. Do you desire to secure your dwellings? Arm yourselves. Do you wish your wives and daughters protected? Arm yourselves. Do you wish to be defended against assassins or the Bully Rocks of faction? Arm yourselves. Do you desire to assemble in security to consult for your own good or the good of your country? Arm yourselves. To arms, to arms, and you may then sit down contented, each man under his own vine and his own fig-tree and have no one to make him afraid….If you are desirous to counteract a design pregnant with misery and ruin, then arm yourselves; for in a firm, imposing and dignified attitude, will consist your own security and that of your families. To arms, then to arms.
I must be relying on the words of just one of the Founding Fathers. Certainly the brilliant men who protected the freedom of speech and freedom to assemble didn’t mean for Americans to be armed with military weapons.
Perhaps Thomas Jefferson had other ideas.
Jefferson’s Commonplace Book, written between 1774-1776, quoted from criminologist Cesare Beccaria’s 1764 On Crimes and Punishment about an armed citizenry:
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.
“But,” you might argue, “that was Jefferson merely quoting someone else.” Perhaps. What did he say in his own words?
Mr. Jefferson was strongly in favor of citizens being armed at all times, as noted in a letter to Peter Carr in 1785:
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.
In a letter to James Madison, on Dec. 20, 1787, Jefferson said:
What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.
That same year, in a letter to William S. Smith, Jefferson wrote of using these civilian owned arms or contemporary military utility against the government itself:
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.
“But these were just two of the Founding Fathers arguing that Americans should always be armed with military weapons to keep the state in check,” you might argue. “Their’s is a minority view.”
It’s possible. Let us have more.
What say you, General and President George Washington?
“A free people ought…to be armed….” (George Washington, speech of January 7, 1790 in the Boston Independent Chronicle, January 14, 1790)
What say you, Benjamin Franklin?
“The thoughtful reader may wonder, why wasn’t Jefferson’s proposal of ‘No freeman shall ever be debarred the use of arms’ adopted by the Virginia legislature? They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” (Benjamin Franklin, Historical Review of Pennsylvania, 1759.)
And what of you, President John Adams?
“To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.” (John Adams, A Defence of the Constitutions of the United States, 475 [1787-1788])
“Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would.” (John Adams, Boston Gazette, Sept. 5, 1763, reprinted in The Works of John Adams 438 [Charles F. Adams ed., 1851])
“Arms in the hands of individual citizens may be used at individual discretion in private self-defense.” (John Adams, A Defence of the Constitutions of Government of the United States of America [1787-1788])
And Governor Sam Adams?
“The Constitution shall never be construed…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, 86-87)
“If ever time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.” (Samuel Adams, 1780)
And you, Treasury Secretary Albert Gallatin?
“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 a right to deprive them of.” (Albert Gallatin at the New York Historical Society, October 7, 1789)
And you, Vice President Elbridge Gerry?
“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.” (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [I Annals of Congress at 750, August 17, 1789])
Secretary Alexander Hamilton?
“…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 The Federalist. 29)
“What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen…The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution… Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.” (Alexander Hamilton The Federalist, No. 29)
“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….” Alexander Hamilton, Federalist Papers, No. 28)
“No more! you shout, “No more!”
Quite clearly, the Founding Fathers had a unified voice; the Second Amendment was written to codify a pre-existing right to one’s defense, but it went further than that, and explicitly defined the citizenry as a militia that must be armed with arms equal to that of military powers they may encounter.
Nor was the citizenry was armed only against foreign invaders. The Founders were quite explicit that they feared the rise of despotic domestic usurpers of power in the state and federal governments, and they wanted the citizens armed to defeat any domestic army under the control of the tyrants that historically arose to challenge the republican form of government on which this nation is based.
That would seem to put the nation’s first major gun control act on very unstable ground, which the BATFE itself seems to recognize:
While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.
As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.
With NFA ’34 “virtually unenforceable,” the federal government then unwisely attempted to rush in more unconstitutional restrictions in Title II of the Gun Control Act of 1968:
Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.
Of course, Freed obviously didn’t remotely cure the “constitutional defects” of the National Firearms Act of 1934. It addressed one minor technical flaw, which utterly ignoring the plain meaning of the Second Amendment as written, explained, and defined by the Founders themselves.
Later gun control bills, from the dishonestly named Firearm Owner’s Protection Act (FOPA) of 1986 to the Clinton-era “assault weapons ban” of the 1994 Omnibus Crime Bill, also seem to fall far short of the plain meeting and Founder’s intent.
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.
We—all of us not disqualified for criminal acts—are the militia.
“Well-regulated” meant at the time and for a century afterward referred to something in proper working order and smoothly functioning. It did not, and could not, refer to laws or restriction as obtusely argued by some intellectually stilted souls today. They ignore, to their own error, the all important phrase that none of these laws may supersede, the right of the people to keep and bear arms shall not be infringed.
It is plainly written in clear English, supported robustly by contemporary accounts, that the Founders meant no free American should restricted the military arms of his kind.
Were they alive today, perhaps Washington, Jefferson, Franklin, Hamilton, etc., might reconsider that perhaps some arms should be restricted. The city-leveling power of bomber fleets and ballistic missiles armed with the power of the atom, capable of eradicating entire populations in a moment, would seem be something no individual or small group should have the power to own and use indiscriminately.
That stated, they would almost certainly agree that handguns, sniper rifles, assault rifles, submachine guns, machine guns, hand grenades and grenade launchers, and artillery are precisely the kind of weapons they would want citizens to have.
How can we say this with such certainty?
The Founders themselves armed for war with muskets, which at four shots per minute, were the commonly issued assault rifles of their day. Contemporary flintlock rifles, while having more far range in the hands of elite marksman only fired one shot per minute, and some took far longer to load. Hand grenades had been in military use in the United Kingdom as early as the Battle of Holt Bridge in 1643, and had been in widespread use for 100 years. Artillery, from swivel guns to cannon, howitzers, and mortars, were in common use and owed by private citizens and communities.
Warships, the most powerful weapons of the day, were often privately owned; in fact, the eight frigates of the Continental Navy performed pitifully, and were all sunk by 1781. The only real naval success enjoyed by the rebellious Americans were from privateers, who made the best of the 1,697 letters of marque issued by Congress.
And so we can say to you without reservation, that yes, the Founding Fathers would have wanted the American people armed with the best contemporary handguns, sniper rifles, assault rifles, submachine guns, machine guns, hand grenades and grenade launchers, and artillery that they could buy, and they would want us well-trained so that we were deadly accurate in their use.
It would seem that the various National Firearms Acts are clearly unconstitutional, as plain as can be an unquestioned violation of the right of the people to keep and bear arms shall not be infringed.
Does this make you uncomfortable?
Does this outrage you?
Would you like to see this horrible antiquated practice of the support of heavily arming Americans undone?
There is a mechanism for that, and shady backdoor interpretations and usurpations of the citizen’s rights need not rear their ugly heads.
Only through a Constitutional Amendment can a Constitutional Amendment be struck down.
Until the day comes that the American people reject or revise the Second Amendment, “shall not be infringed” is the law of the land.
I want to purchase my suppressed machine guns over the counter at Walmart and Walgreens, and I want them, now.