Piercing The Veil Of The Second Amendment

I’ve long struggled with the Second Amendment as my last two articles from 15 years ago proves. My new rule was any honest interpretation of the Second had to explain everything and be contradicted by nothing. So this is my latest attempt...

First an explanation on the difference between natural right and positive rights. A natural right is one that exists in a state of nature... no social structure, no government. The right to defend oneself and the right to own property would be considered natural rights. In his introduction to his draft Bill Of Rights Madison goes through the type of rights he seeks protection for. He describes a positive right here:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature

Source: https://www.usconstitution.net/madisonbor.html

Militias don’t exist in nature. There’s no natural right to be in a government created militia nor own a gun for such duty. The Second is clear it deals solely with a well regulated militia being necessary for the security of a free state.

Prior to the Constitution all the states had such militias and it was the duty of able bodied men to belong to their militia. But is the Framers hoped to avoid a standing army, those state militias had to be standardized hence this part of Article 1, sec 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts 
and Excises... 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;

It was not long before several states realized this meant Congress could disarm or neglect their state militias.

At the Virginia Ratification Convention, Patrick Henry said:

Let me here call your attention to that part which gives the Congress power “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.” By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither — this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory.

The fear Congress could use Art 1 disarm or neglect Virginia’s militia, and the security it provided against both the federal government and slave revolts, led to the Virginia Ratification Convention suggesting this as an amendment to the Constitution.

 That each state respectively shall have the power to provide for organizing, arming and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion, and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own state.
https://www.usconstitution.net/rat_va.html

Madison signed on to this request and knew damn well what VA... and later NC, wanted when he drafted the BoRs. North Carolina used the same language for its request for an amendment.

The Second was never a natural right but a positive right, a limitation on the then new powers of Congress. If Madison solely meant a natural right he could easily have borrowed the language from the 1776 Pennsylvania constitution as the basis of the Second:

“That the people have a right to bear arms for the defence of themselves and the state...” https://avalon.law.yale.edu/18th_century/pa08.asp

In keeping with its Art 1 powers Congress passes the Militia Acts of 1792 which mandates militia members acquire their own firearm.

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Source: https://constitution.org/1-Activism/mil/mil_act_1792.htm

Again, what natural right could the Second protect when there was no choice but to acquire a firearm?

But by 1808 the militia was still poorly armed and Congress, using its Art 1 power to arm the militia passed the Militia Act of 1808 where it begins to arm the state militias.

Source: https://en.wikipedia.org/wiki/Militia_Act_of_1808

In 1903 Congress again used its Art 1 powers to officially dissolve the idea of a “universal” militia and moved to select and a reserve militia. The select militia would be well trained and be called the National Guard and the reserved or unorganized militia had no purpose.

In the end we KNOW who the well-regulated militia of the Second is... it’s the only ones subject to Congress’s Art 1 powers and Art 2 presidential powers for militia call-up... and that is the state national guards which for over a century have been integrated into the Army and are equipped by Congress. 

Which then brings up Heller, a Supreme Court decision where Scalia magically finds an individual right to a firearm in the Second. By right any individual right to a firearm was simply unenumerated, covered by the Ninth. But Scalia spent his career on an anti-constitutional jihad against the Ninth claiming in From Troxel v Granville

"The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."
Source: https://caselaw.findlaw.com/us-supreme-court/530/57.html

Here Scalia bastardizes the Ninth here as he did the Second in Heller. Scalia's wrong. It was never the job of the court to decide what unenumerated rights were. It was their job to find whether government was given any power to restrict the rights in question in the first place. 

Scalia, like Bork, was Reagan's second attempt to please the social conservatives and anti-abortionists that he invited into the GOP. If the Ninth could be stripped of all meaning, various liberation groups using the courts to challenge restrictions on rights would have one less constitutional argument.

 

ulTRAX

6-23-21