my random thoughts....

 
The Second Amendment of the Constitution clearly states that "the right of the people to keep and bear arms shall not be infringed." Of course, the Constitution only applies to the Congress, not to the States; or does it?

William Rawle, who was offered the position of first US Attorney General by George Washington, made the following statement:

"In the second [amendment] it is declared, that a well regulated militia is necessary to the security of a free state. . . .

"The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.

"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 pretence 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."

This clearly indicates that the Second Amendment was intended to restrict both the federal Congress and the State legislatures from infringing the right to keep and bear arms, which can only be an individual right.

However, that is not the whole story. Following the Civil War, several debates took place concerning the Freedmen's Bureau Bill, the Civil Rights Bill of 1866, and the Fourteenth Amendment to the Constitution. Both the Freedmen's Bureau Bill and the Civil Rights Bill specifically mentioned the right to keep and bear arms as an individual right, and even those legislators who were opposed to these bills recognized the right to keep and bear arms as an individual right. But the stated purpose of the Fourteenth Amendment is to put the same prohibition on the State legislatures as already existed on the Congress--a prohibition against violating the rights stated in the Bill of Rights.

That is worth repeating. The State legislatures do not have the power to infringe the right to keep and bear arms any more than does the Congress, thanks to both the Second and Fourteenth Amendments.

Writes Stephen Halbrook:

"Among other freedoms in the Bill of Rights, keeping and bearing arms was considered part of the definition of a citizen. Depicted as a civil right and a privilege and immunity in Dred Scott, the debates on the Fourteenth Amendment, and on related civil rights legislation, this liberty interest effectuated the defense and practical realization of the guarantees of 'life, liberty, or property.' This fundamental right under 'the laws' (that is, the Bill of Rights) also qualified for 'equal protection,' but never for deprivation, whether equal or unequal. To the framers of the Fourteenth Amendment, these universally recognized rights, too numerous to list individually, were to be protected by the all-inclusive language that they proposed.

"The Freedmen's Bureau Act declared that 'the constitutional right to bear arms' is included among the 'laws and proceedings concerning personal liberty, personal security,' and property, and that 'the free enjoyment of such immunities and rights' is to be protected. This again suggests that the Fourteenth Amendment was intended to incorporate the Second Amendment, so as to invalidate state infringements of the right of the people to keep and bear arms. The Fourteenth Amendment protects the rights to personal security and personal liberty, which its authors declared in the Freedmen's Bureau Act to include 'the constitutional right to bear arms.' To the members of the Thirty-Ninth Congress, possession of arms was a fundamental, individual right worthy of protection from both federal and state
violation.

"The arms that the Fourteenth Amendment's framers believed to be constitutionally protected included the latest firearms of all kinds, from military muskets (which were fitted with bayonets) and repeating rifles to shotguns, pistols, and revolvers. The right of the people to keep arms meant the right of an individual to possess arms in the home and elsewhere; the right to bear arms meant to carry arms on one's person. The right to have arms implied the right to use them for protection of one's life, family, and home against criminals and terrorist groups of all kinds, whether attacking Klansmen or lawless law enforcement. Far from being restricted to official militia activity, the right to keep and bear arms could be exercised by persons against the state's official militia when it plundered and killed the innocent.

"In the above sense, 'the constitutional right to bear arms' was perhaps considered as the most fundamental protection for the rights of personal liberty and personal security, which may explain its unique mention in the Freedmen's Bureau Act. To the framers of the Fourteenth Amendment, human emancipation meant the protection of this great human right from all sources of infringement, whether federal or state."

All quotes taken from Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, by Stephen P. Halbrook, 1998.

This is not some academic political theory to be debated; this is history. Our history, our Constitution, our heritage, our liberty--all paid for by the blood of our forebears.


posted by Greg at 2:08 PM