“The right of the people to keep and bear Arms shall not be infringed:” The 2nd Amendment and the Purpose of the Founders

Part III

The wording of the Second Amendment speaks for itself in the context of the founding generation’s aversion to a standing army. Their aversion came not simply as a result of their experiences with the British army which was maintained during times of peace. Indeed, their aversion was part and parcel of their political philosophy of genuine liberty. To them, a standing army was a tyrant’s institution without which he could do nothing, but with which he would crush the freedoms just secured by the revolution.

To that, the amendment reads: “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.”

Each word has specific meaning in the legal lexicon of the 18th century. As has been seen by the previous two installments, the amendment was not written in the colloquial, or the vernacular, but in a language which has roots reaching back through the common law legal system all the way back to Magna Carta and beyond. That is emphatically the context in which the U.S. Constitution was drafted and ratified. But the best way to understand how it fits into the constitutional super structure is to see what question in the Constitution it is answering. That of course is the question of standing armies.

The Constitution quite clearly delineates what powers belong to the federal government and what powers do not both by outright delineation and contextually. For instance, the framers never would have given a government the very authority they had just fought a war over: to arbitrarily tax and spend willy-nilly. The Congress is specifically limited by the Constitution in how it can exercise its authority of taxation (and other forms of revenue collection) by a simple preposition: to.

“The Congress shall have the power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States.

(The first iteration of “To” being capitalized in order to delineate the following delegated authorities following in Section 8.)

In other words, the Congress shall have the power to lay and collect certain forms of taxes for the sole purpose of paying the debts, providing for the common defense, and general welfare (meaning the monetarily efficient implementation of the delegated duties) of the United States (government). That is, they can only collect whatever monies they need in order to pay for their delegated duties. Anything beyond that, such as collecting taxes based on one’s income, which is collected for the sole reason of collection and not directly and proportionately tied to the immediate needs of legitimately accrued federal debts is expressly against the Constitution.

This conclusion is clear and easy to reach when one simply takes the words of the Constitution in their original context. However, as I am sure anybody who pays nearly 40% of their income in taxes (federal mostly) knows by experience, the great constitutional experts of the day claim (along with some very disingenuous Supreme Court justices) that the government has the power to tax and spend. One can see by simply observing our current levels of taxation and the absolute corruption which is rampant throughout all echelons of the general government, where an unrestricted, misinterpreted, power leads.

The same method of interpretation applies to all other sections and amendments to the Constitution. This, of course, applies to the Second Amendment as well and to perhaps the most interesting part of the Constitution: the part of the Constitutional structure which preserves a limited government, freedom from tyrants, and the relevance of a well-regulated Militia not only in the time of the founding but in our day as well.

Congress has subsequently been delegated the authority simultaneously in Section 8 to maintain a Navy, and to raise Armies. Notice how Congress has not been granted the power to also maintain an army. This is made clear by the actual text of the Constitution:

“To declare War . . .To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;”

Thus, according to the actual text of the Constitution, the federal government is granted to power provide and maintain a navy, but not an army. To Congress is granted the authority to raise armies (not maintain the U.S. Army), but no appropriation of money shall be for more than two years. The two year appropriation is designed to eliminate the mechanism by which governments maintain militaries: the permanent appropriation of funds and the establishment of standing armies. Further, aside from the actual wording of the delegated authority to raise armies, it comes after the congressional power to declare war. When taken in the context of the power to declare war and the federal restriction to not spend money on anything that is not pertinent to the immediate welfare of the government, it is obvious that the power to raise armies is only in reference to a formal declaration of war; which if speedily concluded, the period of two years should be sufficient for the appropriation of monies for the support of armies. Outside of a declaration of war, the militia is responsible for the immediate defense of the states and the United States.

Section 8 continues:

“To make Rules for the Government and Regulation of the land and naval Forces;

To provide for the calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . .”

If anybody should think that a militia would not be capable of defending the country in the case of invasion, one need only look at the contemporary example of Switzerland, which has not been involved in a war in over 400 years, despite being in the middle of war-torn Europe during the French Revolution, the Napoleonic Wars, the Franco-Prussian War, the First World War, the Second World War, and the Cold War, which has a long standing tradition of not maintaining a military and in its stead providing for a good militia. During the First World War, a story emerged of a German military observer who was watching the Swiss militia drill. The German officer turned to the commander of the militia company and asked, “what do you think your country would do if Germany invaded Switzerland?” to which the Swiss militia officer stated, “we would all step out of our homes, fire one shot, and then go back inside with the war won.” This was an experience confirmed by Finland during the Winter War of 1939-1940; a little known conflict in which the imperialist USSR invaded Finland with their millions of men.

Finland, which did not and does not have a conventional standing army but a force of reserves which is very similar to the U.S. militia system, at the time the Soviet Union invaded in 1939. During this conflict in which the Fins were up against the almost limitless masses of the Soviets it is reputed that Finish gunners went mad from the amount of blood that they spilled in defense of their country. Stalin is believed to have stated to one of his generals who was concerned at the astronomical casualty numbers, “it matters not, we have more men then they have bullets.” Regardless of the numbers thrown at them, the Finish military structure proved extremely effective. They defeated the Russian federation and preserved their national sovereignty.

Most people are unaware that the founders, and the subsequent inheritors of their military tradition, actually codified this same reservist/militia structure which is still in use in other free countries to this day. In the United States, and the various states which make up the greater union, the militia is still a viable, legal, and statutorily protected organization. It still exists under the law and, indeed, it is the foundation of our American freedom itself.

What and where is the militia in the United States?

You and I are the militia. Federal law spells it out clearly and explicitly:

“10 U.S. Code § 246-Militia: Composition and Classes states that the Militia is organized into two classes: the organized, the unorganized militia.

(a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b)The classes of the militia are—(1)the organized militia, which consists of the National Guard and the Naval Militia; and(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

In other words, the greater body of the male population of the United states, per the legal duty to defend our union and our native states, are the military might of the nation waiting in repose and readiness. Any corporation or agency which deprives the people of their rights and duties under the Constitution, and our ancient rights rooted in the common law tradition and Magna Carta, is an infringement on our liberties, rights, and freedoms.

President Eisenhower warned the American people in his farewell address of the growing threat and menace to freedom of a large standing “military industrial complex,” stating: “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

His foresight and perspective, not only from his personal experiences but from the perspective of history, have been validated by the evidence of a rapidly expanding federal government, the loss of personal liberties at an ever increasing rate, and the attack on the basic fabric of American liberty: our right to keep and bear arms.

If the military industrial complex did not exist and the right to keep and bear arms was still recognized as being the best defense of a free state, the federal government would not consume hundreds of billions of dollars each year (and growing) for the purposes of guarding against a threat which would not dare attack a nation of men who would personally bear arms in defense of their native soil. There would simply not be an army big enough to overcome roughly 60 million effectively armed, regularly drilled, and trained American fighting men. The founders knew this to be true and recognized that this right, the right to keep and bear arms, was the teeth of a well ordered and balanced distribution of power.

Most people wonder how the U.S would defend its territory from attack when they hear this idea, or in reality that a standing army is not only illegal in times of peace but is actually dangerous to liberty. The answer is in the two fold national defense system that the framers put into the Constitution when these questions were being hotly debated during the constitutional convention.

To defend the actual territory of which the United States is comprised, the militia stands at the ready to serve for the immediate defense and to be drafted into a national army when the time calls for it. To serve the purpose of deterrence against hostile foreign powers, a strong navy consisting of all the necessary and modern fighting methods (including ballistic missiles and a marine corps) would be maintained by congress. The reason why a navy is not such a threat to liberty is because a navy would have much more difficulty controlling a nation which stretches from one coast of the North American continent to the other when it is bound to operating within navigable rivers and on the coastlines. This was also a practical reality which the framers saw at the time. However, the power for the national government to maintain a navy but only to raise armies in times of war was also an integral part of the system of English liberties which the founders were ensuring remained protected by the victory won over Great Brittan in the revolution. If the general government is deprived of the power to oppress the people with a military organization on land, the people are not in fear of their government; the people are their own government.

The implications of this reality are huge. Essentially, what this means is that there is no federal gun control policy or law (under color of law) that can legitimately restrict what small arms a citizen of the United states can own, use, bear, or buy without running headlong into the very purpose of a distributed system of power which vests the people with the immediate defense of their country.

The most essential element to a genuine political liberty is the people’s freedom of knowing that they are vested with the power to govern themselves, and that they will not be coerced by the stronger elements of society to bend the knee to tyrants. This is a simple truth of life and this truth is what the Second Amendment was designed to ensure never became violated. The simple truth is that the mere existence of a standing military establishment outside of a navy is a gross infringement on the rights of the American people and, as Eisenhower warned, is a danger to, not a protection of, our freedom.