The Second Amendment: Constitutional Right or a Governmental Wrong?

By Robert Greenslade
© Nitwit Press

The shooting at Sandy Hook Elementary School has once again thrust the Second Amendment into the spotlight. Supporters of the Amendment claim they have a constitutional or Second Amendment right to keep and bear arms. Opponents counter that even if that were the case, the federal government was granted the general power to place restraints on the right. Both of these assertions are based on a misconception concerning the intent of the document known as the Bill of Rights.

When the Bill of Rights was submitted to the individual States for ratification, it was prefaced with a preamble. As stated in the preamble, the purpose of the Amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The Amendments, when adopted, did not create any so-called constitutional rights or grant the federal government any power over individual rights; they placed additional restraints and qualifications on the powers of the federal government concerning the rights enumerated in the Amendments.

If the Second Amendment is read through the preamble, we find it was incorporated into the Bill of Rights as a “declaratory and restrictive clause” to prevent the federal government from “misconstruing or abusing its power” to infringe on the people’s right to keep and bear arms.

Another way to understand the original intent of the Second Amendment is re-write it through the preamble:

“Because a well-regulated Militia is necessary to the security of a free State, the federal government is expressly denied the power to infringe on the people’s right to keep and bear Arms.” (EN 1)

In the author’s opinion, the preamble and original intent of the Amendments has been suppressed by the institutions of government because it would expose their usurpation of power and perversion of Amendments contained in the Bill of Rights.

By advancing the myth that the Amendments grant the American people their individual rights, the federal government has been able to convert enumerated restraints and qualifications on its power into legislative, executive, judicial and administrative power over individual rights. The federal government claims it was granted the constitutional authority to determine the extent of the individual rights enumerated in the Amendments and/or impose “reasonable restraints” on those rights. This assertion is absurd. The federal government does not have the constitutional authority to ignore, circumvent, modify, negate or remove constitutional restraints placed on its power by the Amendments, or convert them into a power over the individual right enumerated in the particular restraint.

A denial of power or an enumerated restraint on the exercise of power is not subject to interpretation or modification by the entity the restraint is being imposed upon. The restraints imposed by the Amendments, which were adopted 4 years after the Constitution was ratified, override the legislative, executive, judicial or administrative powers of the federal government. If this were not the case, then the restraints would be meaningless because the federal government could simply circumvent, modify or remove them. Why would the States have requested and adopted enumerated restraints on federal power, subsequent to their ratification of the Constitution, if the federal government possessed the authority to nullify them?

When the federal government infringes on one of the rights enumerated in the Bill of Rights it is not violating anyone’s constitutional rights; it is violating the additional restraint or qualification placed on its power by the particular Amendment where the right is enumerated. The distinction between rights and restraints is critical.

As stated in the Declaration of Independence, the American people have unalienable rights that come from a higher source than government or a written document. By acknowledging that people have natural rights, which are bestowed by a creator, the Founders laid the foundation for the principle that government does not have the lawful authority to take away or infringe on those rights. This principle was incorporated into the preamble and structure of the Amendments to secure individual rights from government encroachment; that is why they were designed and imposed as restraints on the exercise of power.

If the individual rights of the people had been created by the Constitution or an amendment to the document, then they would cease to be unalienable because the right would depend on the existence of a document. If the document or a provision of the document disappeared, so would the right. The belief that individual rights were created by a written document has opened the door for the federal government to claim the power to define the extent of any right enumerated in an Amendment. This has transformed constitutional restraints placed on federal power into subjective determinations of individual rights by the institutions of government. By failing to understand the difference between amendments that create rights and amendments that impose restraints on government, the American people are watching their individual rights vanish as they are reduced to the status of privileges bestowed by government because the constitutional restraints placed on federal power are being replaced by government decree.

Opponents of the Second Amendment always try to diminish the right enumerated in the Amendment by asserting that rights are not absolute. This is just another straw man argument because the Amendment is about imposing a restraint of the powers of the federal government concerning a right: not granting a right or defining the extent of a right. In addition, a review of the Second Amendment shows that the restraint imposed by the Amendment does not contain any exceptions.

If firearms owners continue to use terms like “constitutional right” or “Second Amendment right” to describe the right to keep and bear arms, the federal government will continue to violate the restraint and assert the power to impose general restraints on the right. In order to begin correcting the perversion of the document known as the Bill of Rights, supporters of the Second Amendment need to use the term “Second Amendment restraint” to describe the purpose and effect of the Amendment.

By using correct terminology, supporters of the right to keep and bear arms can change the dynamics of the debate. For example. What would be the response if the firearms community made the following statement when discussing the issue: “We do not have a constitutional or Second Amendment right to keep and bear arms. We have the right to keep and bear arms and that right was secured from federal encroachment by the additional restraint imposed on federal power by the Second Amendment.” Not only is this statement constitutionally correct, but it could also transform the debate into a teachable moment that goes beyond the Second Amendment.

The preamble to the document known as the Bill of Rights is the key to resurrecting the original intent of the Amendments. Since the stated purpose of the Second Amendment was to place an enumerated restraint on federal power, that government does not have the general authority to impose restraints on the right enumerated in the Amendment because the Amendment placed a constitutional restraint on the federal government.

Endnote 1-The word “because” can used at the beginning of a sentence to introduce a dependent clause. The first part of the Second Amendment is a dependent clause because a well-regulated militia is dependent upon the people’s right to keep and bear arms not visa versa. Therefore, it is, and would have been acceptable to use the word “because” at the beginning of the Amendment This change maintains the intent and sentence structure of the Amendment but makes it read in a manner that is more in tune with modern sentence structure.

About MamaLiberty

As a lifelong individualist and voluntarist, my philosophy can best be summarized here: No human being has the right -- under any circumstances -- to initiate force against another human being, nor to threaten or delegate its initiation. Self defense, and the defense of others, is a basic right of all living creatures. After a long career as a registered nurse in So. Calif, I retired in 2005 to NE Wyoming, living alone in my own log home, with good friends and neighbors all around. Biological family includes two grown sons and five grandchildren, unfortunately still in California. In addition to writing and editing, I garden, sew, cook and bake my own bread from home ground wheat and other grains. Hobbies include identification and cultivation of wild food and herbs. I am also a certified instructor for firearms and self defense. I carry a gun at all times.
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9 Responses to The Second Amendment: Constitutional Right or a Governmental Wrong?

  1. Anthony says:

    Hey MamaLiberty

    I think parts of what I wrote were unclear or misinterpreted. (My entire comment was, off the cuff).

    For example, I certainly agree that you absolutely have the right to fight a fire(s), build, own, open, and operate a school, etc. It was not my intention to imply that you, I, and every other human being does not have the right to do such things.

    My intention was to communicate the fact that no human being has the right to violently prevent you from doing such things. Therefore, monopolizing these things, and funding them through violence (income tax, sales tax, property tax, etc), is not only absurd, but illegal as well (and immoral, and irrational, and so on).

    Compelling parents under the threat of violence and death to send their children to schools is also, all of the above. The fact that said schools are typically funded by violence, is even more insane.

    Regarding voting, what I tried to communicate is that people only have the legal authority to vote on what they will *then* have the power to vote on, if said items and future entities are optional, peaceful, non-violent, and so on.

    For example, I do not believe people have the right to vote that a violently enforced military draft be implemented (for any reason). By extension, they do not have the right to vote that their government will in the near future, even have the power to implement such a thing.

    It’s sort of like : not only does the government not have the right to violate your right to own a firearm, and not only is the federal government explicitly *re-restrained* from doing so via the 2nd amendment — any constitutional amendment that attempts to reverse the 2nd amendment is illegal.

    (The 2nd amendment is simply an explicit restrainment for the federal government, that prohibits it from doing something it already has no legal authority to do in the first place, never has, does not now, never will, and does not have the capacity to gain such authority).

    Here’s something I posted elsewhere today that may be illuminating :

    “The Declaration of Independence was the first, and is the only document in American history to first declare the existence of our nation : to ourselves, and to the world.

    It is logical to conclude that this document, that created our nation, also determined the legal foundation for our country. This is evidenced by the fact that treason – the highest of crimes — to the British Crown, was nullified July 4th, 1776.

    Was made void, meaningless, and unenforceable.

    This Declaration of Independence (and of secession) also declared the existence of certain, unalienable rights, that exist independent of and prior to, any such institution as government.

    It is further logical to conclude that any and all governments formed in said nation, only have legal authority to exist and operate, in the context of this document. Any such actions, documents, constitutions, laws, regulations, or statues, that conflict with, violate, or in any way hinder said and declared unalienable rights, are thereby illegal, null, void, and of no legitimate or enforceable authority.

    In conclusion, not only has no government in history ever been granted, contracted, or delegated the right to infringe upon your (unalienable, undelegateable, unalienable) rights to even the smallest degree imaginable, the very creation of this nation explicitly, irreversibly, and forever forbids it.”

    • MamaLiberty says:

      “In conclusion, not only has no government in history ever been granted, contracted, or delegated the right to infringe upon your (unalienable, undelegateable, unalienable) rights to even the smallest degree imaginable, the very creation of this nation explicitly, irreversibly, and forever forbids it.”

      Just one real big problem with that… There is simply nothing but our individual effort that can actually “forbid” it, or reverse the very real infringements that exist. And only self owners are willing to or capable of doing anything about it. No piece of paper has that power.

  2. MamaLiberty says:

    So long as the institution does not violate rights, I do not believe you would have the right to forcefully prevent such an organization from forming or existing, the same way you do not have the right to prevent me from forming any other non-violent, peaceful organization.

    I don’t recall saying a word about preventing any government or organization other people wished to form and operate within – let alone forcefully. All I’m interested in is being left free to form voluntary associations with others, and not to have ANY of my life subject to the “vote” of others without the right to opt out.

    No human being has the right, under any circumstances, to initiate force against another human being, nor to delegate such initiation of force. The counterbalance to that is the absolute right of each human being to defend themselves and their property against such force, with whatever means or tools they find necessary.

    …government is permanently transformed into a peaceful institution.

    I can’t see how in the world you propose to accomplish that. If the people are well able and willing to abide everyone else’s rights, and defend themselves against aggressors, they will form local voluntary associations to take care of mutual needs, each group with their own criteria and methods. There is zero reason for any sort of federal government above that level that I can see. And I can see zero possibility that such a government could be kept from corruption. Even at the local level, the only protection against that would be meaningful self ownership, and constant individual attention to agreements and contracts being signed. The selection of any sort of rulers or “representatives” would be the start of that corruption at any level. I’ve seen it operate that way in a Boy Scout troop, so I have no doubt of the outcome in any other setting when “leaders” have the power to control.

    Human nature is what it is, and it won’t be changed any time soon.

    Unlike fighting fires, and schools, and roads, etc, which have nothing to do with your unalienable rights (the basis for a legal government)

    I seriously beg to differ with you here. My inalienable rights include absolutely everything I am, have and do. There is nothing that is outside of those rights except aggression against another person.

    There is zero legitimate basis for a non-voluntary government of any kind. Fighting fires, building roads, and the education of children – and absolutely everything else – is the responsibility of the individuals involved. Their voluntary associations and contracts can, and have taken care of every so-called government function. There is no reason they couldn’t do so completely.

    Now, you can call the voluntary association a “government” if you like, and that would fit into your scheme rather better, but I don’t think that’s exactly what you are talking about.

    The most critical thing to consider, no matter what associations or compacts people make, is that individual liberty and justice cannot happen in a vacuum… it is not possible among people who do not accept full ownership and responsibility for their lives and property. As long as most people truly think they can and should be in control of other people’s lives, through direct action or “voting,” no free society is even remotely possible, much less a “government” that does not violate the rights of those it presumes to rule.

    • Anthony says:

      “No human being has the right, under any circumstances, to initiate force against another human being, nor to delegate such initiation of force. The counterbalance to that is the absolute right of each human being to defend themselves and their property against such force, with whatever means or tools they find necessary.”

      ####

      I completely agree with this statement, however, I’m not sure if you have taken the statement to it’s full, logical conclusion.

      By definition, you can only delegate or contract rights that A, you first posses, and B such rights that are delegate-able/contractible.

      The initiation of force cannot be delegated because you above all, do not have the right to perform such an action in the first place. *Retaliatory* force however, is something you are within your rights to ask someone to aid you with.

      In fact, as you suggest, this may be a necessary and proper tool for getting the job done. This is true for the physically incapable (85 year old grandmas), as well as for when the threat of force is no longer an immediate threat.

      As Greg Swann calls it, there is a time component in place when you invoke the word retaliatory or retaliation. This is where it is completely rational and just to request the help of other people, acting on their own voluntary choice (this would include courts, police, etc).

      - Anthony

  3. Anthony says:

    I just found your blog through Greg Swann. Thank you so much for writing/maintaining it. I absolutely love what I’ve found. I hope to be in contact soon about a politico-legal philosophy I am developing.

    take care

    - Anthony

    • MamaLiberty says:

      I did read your “Declarationism” essay. For those who want any sort of government it sounds very good. What do you propose to do about those of us who neither want nor require anything except SELF government. I see no provision in your proposal for dealing with those of us who want no “state” whatsoever.

      I hope you will be willing to discuss this topic.

      • Anthony says:

        Thanks for reading, and certainly!

        First of all, that essay is very old. It is actually posted there for technical/testing purposes more than anything else at the moment. (The site is looks finished, but there are still things to be completed, and of course post drafts to be finished).

        My thoughts have advanced significantly since the writing of that essay almost 2 years ago, even though the super majority of that essay still holds up to my current thoughts.

        Regarding your question, it is something I will need to think further on. However, my first thought is that A, violently enforced taxation is illegal. In light of this, if you want to literally contribute nothing to “the government”, you now not only have the right to (do nothing) in the first place, but also the real, daily life capacity to do so.

        B, you may also have to do additional homework though, such as, find and shop at businesses that share similar positions, and do not collect sales tax, etc, on the products and services they render.

        In a Declarationist society, you also now have the unhindered ability to use any money of your choice, so long as the seller is willing to accept it, without feat of anyone coming to initiate violence against you on behalf of a large organization. This further distances you, very clearly, from any support of an institution you do not support.

        Now as far as not “wanting” a state in any capacity, I am convinced men have a right to institute just, non-contradictory governments among themselves – to protect and preserve their unalienable, undelegateable, non-contractible rights.

        So long as the institution does not violate rights, I do not believe you would have the right to forcefully prevent such an organization from forming or existing, the same way you do not have the right to prevent me from forming any other non-violent, peaceful organization.

        (I would include strictly retaliatory violence inside the scope and definition of a peaceful institution).

        Perhaps this is a basic premise of Declarationism that will answer your question : government is permanently transformed into a peaceful institution. Any violation of an individual’s rights comes from : a common criminal, a legitimate mistake, simple incompetence, or outright corruption (e.g. local judge gets a bribe).

        Corruption at higher levels, as we see today, would no longer be possible. A corrupt congressman or president, would no longer have the (illegal) authority to do anything truly devastating or insulting to individual rights.

        In logically reverse order, the underlying reason that voting is seen as “important” and “a duty” today, is because it is a self-defeating feedback loop, of indirectly voting on what you get to vote on.

        Richard Nikoley revealed a parallel statement to this once on his blog that I loved : you will never collectively vote your way out of collectivism.

        Now you also mentioned “requiring” a state, or not. In a Declarationist society, if you don’t require government sponsored fire protection, then you simply don’t pay, and throw the request for money in the trash.

        This is under the assumption that a government run fire department even exists in your area. People in your area may opt to start one via the local government, but then they have to pay for it, lest it goes under.

        It is unlikely that this would go on for very long. It is much more likely private businessmen would create a less expensive, more efficient organization for fighting fires, which you would then pay, or not pay, directly.

        If they failed to meet contracted obligations however, your only practical recourse would still be through government.

        Now, a bigger question you are probably asking right about now is private law enforcement, private courts, and private military organizations.

        Unlike fighting fires, and schools, and roads, etc, which have nothing to do with your unalienable rights (the basis for a legal government), police, courts, and the military do. To what degree would private organizations like these exist, and how would they operate with a just government? (If at all?)

        Well these are huge, complex, questions, and perhaps like you, I wish to live to see the day where this is *all* we have left to discuss.

        =)

        (Ill have to sit down, think, and write and essay on this topic sometime).

        - Anthhony

  4. Hairball says:

    Yes, but now we’re at the point where the law is whatever they say it is. Just listen to how the Cratzis twist the wording – “…it says ‘militia’…it says ‘militia’ – that’s the National Guard!”. Now we have the beginnings (really, just the beginnings, the steamrolling is yet to come) of how we should “give up on the Constitution”. Not a whole lot of hope for a good outcome here…

    • MamaLiberty says:

      Depends on what you are hoping for, actually. And it depends on what you are willing to do to correct the problems that have festered for generations. I don’t think any solution will be easy or comfortable, and many people will suffer and die needlessly, but I think that a supreme effort must be made to restore individual liberty and justice or mankind will sink into the most brutal slavery ever imagined.

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