December 19, 2005

Those groups and individuals opposed to the private ownership of firearms claim that when the Constitution was written, the several States did not have the "right" to maintain armed militias. As a consequence, the States, according to these individuals, adopted the so-called "collective right" Second Amendment to prevent the federal government from disarming their militias. The assertion that the States proposed a so-called "collective right" amendment is correct. Two States did indeed request such an amendment. However, this "collective right" amendment was not the one that became the Second Amendment.

Despite this fact, several legal commentators have attempted to develop the "collective right" interpretation in law reviews written during the past several decades. Their writings have been adopted by modern gun control advocates as the "proper interpretation" of the Second Amendment.

In his law review on the Second Amendment, Ray Weatherup made the following statement:

"Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore, the 'individual' view must be rejected in favor of the 'collectivist' interpretation, which is supported by history..."

Mr. Weatherup's statement is disingenuous for several reasons. First, is the implication that the delegates were sent to the Federal Convention to establish so-called "personal rights." The delegates were, in fact, sent for the sole and express purpose of revising the existing federal system of government established by the Articles of Confederation. Second, is the statement that the delegates "had no intention of establishing any personal right to keep and bear arms." The right had existed in the colonies since their inception by virtue of English Common Law. In addition, none of the powers being proposed for the federal government were to have any affect on the existing rights of the people, including the individual right to keep and bear arms. Third, is his insinuation that the Constitution is the source of people's rights. The Declaration of Independence asserts that the people have unalienable or natural rights that emanate from a higher source than government or written constitutions. On September 12, 1787, five days before the Federal Convention completed its work, a proposal was made to preface the Constitution with a bill of rights. This proposal was deemed "unnecessary" and was quickly and unanimously rejected. It would be almost four years before the so-called Bill of Rights would be added to the constitutional compact between the several States. Thus, the Constitution did not establish any personal rights, "collective or individual."

Professor John Levin, in his law review article, argued the right to keep and bear arms, as enumerated in the Second Amendment, relates to the "federal" militia:

"Though the Constitution was ratified, the issue of the Federal militia was not resolved until adoption of the second amendment."

This statement is historically misleading. The Constitution did not establish a federal militia. In fact, the Founders purposefully structured the military provisions of the Constitution to prevent the establishment of a federal militia. The only militias in existence at the time the Constitution was proposed and adopted were the militias of the several States.

A few paragraphs after making the above statement, Mr. Levin attempted to link the Second Amendment to the State militia:

"From the debates it seems clear that the intent of Congress in passing the second amendment was to prevent the Federal government from destroying the state militia."

Modern gun control organizations have adopted various interpretations of this premise. The Brady Campaign asserts that the purpose of the Second Amendment was "to prevent the federal government from disarming the State militias."

"The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the 'anti-federalists' feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias."

The Coalition to Stop Gun Violence claims the Amendment was adopted to "ensure the right of the states to maintain their own militias."

"The Second Amendment was adopted to ensure the right of states to maintain their own militia to protect themselves against foreign and federal encroachment."

If the purpose of the Second Amendment was to "prevent the federal government from disarming the State militias" or to "ensure the right of the states to maintain their own militias," then the Constitution would first have to contain a provision that granted the federal government the power to disarm or destroy these militias. In other words, what constitutional power did the States, when they ratified the Constitution, grant to their federal government that necessitated the addition of the so-called "militia" Second Amendment four years later?

When the Constitution was submitted to the States for ratification, it granted Congress two limited powers concerning the use of the State militias. These powers are found at Article 1, Section 8, Clauses 15 and 16:

"To provide for 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."

Neither of these clauses granted the federal government the power to disarm or destroy the State militias. Clause 15 granted the federal government the power to "borrow" the State militias to perform the three limited functions enumerated in that provision. Clause 16 distinguishes state and federal power when the State militias are called into the actual service of the United States. The Second Amendment did not amend either of these two clauses or grant Congress any new power concerning the State militias. Therefore, the Second Amendment could not resolve any controversy concerning the militias as expressed by Professor Levin, The Brady Campaign, or The Coalition to Stop Gun Violence.

Following the close of the Federal Convention a controversy did arise concerning the State militias. This controversy was unrelated to the existing right of the people to keep and bear arms. The Anti-Federalists, who opposed ratification of the proposed constitution, argued that unless Clause 16 was amended, the States would surrender the power of "organizing, arming and disciplining" their militias in the event Congress refused or neglected to perform those functions. They feared that if the federal government ever became tyrannical, it could use Clause 16 to destroy the State militias. As a result, the States would not have an organized military force to resist foreign invasions or encroachments on their sovereignty by the federal government.

The Federalists, who advocated adoption of the proposed constitution, argued that the apprehensions expressed by Anti-Federalists concerning the militia clauses were unfounded. They correctly pointed out that the powers enumerated in Clause 16 were not surrendered, but concurrent because the federal government had no power over the State militias unless and until they were in the actual service of the United States. When not performing the three limited functions enumerated in Clause 15, the federal government had absolutely no power over the State militias. The Federalists saw no need to amend Clause 16 because the States had exclusive authority over their militias when they were not being "borrowed" by the federal government. Thus, it would be constitutionally impossible for the federal government to disarm the State militias.

As a result of this debate, the Anti-Federalists in two States, Virginia and North Carolina, succeeded in getting their States to adopt a "collective right" militia amendment to amend Clause 16. Their proposed amendment would modify a clause in the body of the Constitution and was not part of any proposal for a bill of rights. The amendment was submitted to the first Congress in 1789 and read as follows:

"That each State respectively shall have power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress shall omit or neglect to provide for the same."

Modern day opponents of the individual right to keep and bear arms, knowingly or unknowingly, are extracting quotes from the debates surrounding this militia amendment, primarily from the State of Virginia, to substantiate their claim that the purpose of the Second Amendment was to prevent the federal government from destroying or disarming the State militias.

In addition to the above militia amendment, the Anti-Federalists in New York, Virginia, North Carolina and Rhode Island proposed a separate individual right amendment that was to be part of a bill of rights. The following is from the Virginia proposal and read in part:

"That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some manner such as the following;

First, That there are natural rights of which men, when they form a social compact cannot deprive or divest their posterity.

Seventeenth, That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state..."

When read in proper context, through the qualifying statements that proceed it, the right to keep and bear arms language clearly pertained to the people individually, not the States collectively. If the purpose of the Second Amendment was to grant the States the "collective right" to arm their militias, then there would have been no need for New York, Virginia, North Carolina and Rhode Island, to adopt a separate individual right amendment. The "collective right" militia amendment proposed by Virginia and North Carolina, standing alone, would have accomplished the goal of preventing the federal government from disarming the State militias.

In the final analysis, these were two totally separate amendments that had nothing to do with each other. One amendment was intended to modify one of the two militia clauses in the body of the Constitution and specifically referred to the States. The other amendment, which was to be part of a bill of rights, would pertain exclusively to the people. Both of these amendments were submitted to Congress in 1789 when a bill of rights was under consideration. The amendment worded specifically to accomplish what gun control advocates claim was the purpose of the Second Amendment was rejected and not included in the final proposal for a bill of rights. However, the proposed individual right amendment, with slight modification, was the one adopted and eventually became the Second Amendment. These facts, for one reason or another, have eluded those groups and individuals that claim the purpose of the Second Amendment was to prevent the federal government from disarming or destroying the State militias.

As shown above, the facts surrounding the forgotten militia amendment negate any assertion that the purpose of the Second Amendment was to grant the several States the "collective right" to arm their militias. The failed "collective right" militia amendment was unrelated to the one that became the Second Amendment and any attempt by organizations like the Brady Campaign to link the two is factually and historically dishonest.

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

Archives

The ·2004 Declaration of Independence

The Constitution and YOU Part 1

The Constitution and YOU Part 2

The Constitution and YOU Part 3

Would the Montana Firearms Freedom Act Stop Federal Usurpation of Power under the Commerce Clause?

The States Still have the Power to Control their Federal Government

Does the Federal Government have the Constitutional Authority to the Abrogate the Right to Keep and Bear Arms Through a Treaty?

Schwarzenegger has the Power but does he have the Testicular Fortitude to Secure California's Border?

It is the Duty of the States to Protect Your Rights

Constitutional Hypocrisy and the Flag Desecration Amendment

The Stars and the Stripes is the States' Flag

The Flag Desecration Amendment Violates the First Amendment

The Federal Government is using the General Welfare Clause to Steal your Money

Democrats Play the Commerce Clause Card at Robert's Confirmation Hearing

Alito Strikes Out in First at Bat for Team Supreme Court

The Victims of the Public School System Guide to the Bill of Rights

Complete Archives for Robert Greenslade