The Second Amendment as Our Founders Understood It

The New Hampshire State Senate Judiciary Committee will hold a hearing regarding some gun issues which are:

  • Repealing the existing law that requires a person to have a concealed firearm license in order to carry concealed.
  • Increasing the length of time a license to carry is valid.
  • Directing the state police to enter into reciprocity agreements with other states to recognize their carry licenses.

In Texas in 1999, U.S. District Judge Sam Cummings ruled in a domestic abuse case that the Second Amendment guaranteed an individual the right to keep and bear arms.

There was naturally blowback from this decision. His detractors claimed he neglected to follow usual judicial practice. You see, his sin was not citing legal precedent to support his decision.

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That one sentence clearly defines a major problem in this country, run by pinhead lawyers — so full of arrogance that they think themselves and their court decisions superior to the Constitution and the founders. By citing only court precedent instead of original intent one bad decision leads to another and so on.

Some legal pinheads might cite the Supreme Court case U.S. v Miller (1939) wherein the court ruled the Second Amendment’s “obvious purpose … was to assure the continuation and render possible the effectiveness of the state militia” (the National Guard). In the early 1980s, the Illinois Supreme Court, as well as the U.S. Seventh Circuit Court of Appeals, ruled that there was no right for individuals to keep and bear arms in the Second Amendment.

I’m not a constitutional scholar or great jurist with an army of researchers, but I can read. Did the framers intend the Second Amendment to encompass an individual’s right to carry guns for self-protection? It turns out the founders had plenty to say on the subject.

The first state Declaration of Rights to use the term “bear arms” was Pennsylvania in 1776: “that the people have a right to bear arms in defense of themselves and the state.”

Noah Webster of dictionary fame was certainly in a position to know what the Second Amendment phrase “bear arms” meant. A prominent Federalist, he wrote the first major pamphlet in support of the Constitution when it was proposed in 1787, in which he stated:

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”

Again, pretty straightforward, but one might expect that of a wordsmith.

In fact, Webster’s famous 1828 dictionary defines “bear” as “to wear; to bear a mark of authority or distinction; as to bear a sword, a badge, a name; to bear arms in a coat.” Continuing to the word “arms”: “weapons of offense, or armor for defense and protection of the body.” So according to Webster, “bear arms” is to carry or wear weapons openly or concealed. Further, Webster defines “pistol” as a “small firearm, or smallest firearm used … small pistols are carried in the pocket.”

Thomas Jefferson was an admirer of the writings of Cesare Beccaria. Beccaria wrote an essay on “Crimes and Punishments” which greatly influenced the Eighth Amendment on cruel and unusual punishment. Jefferson wrote word for word passages from Beccaria in a commonplace book (a journal). One such passage was a denouncement of laws which forbid di portor le armi. In other words, to forbid the bearing, carrying or wearing of arms. At the end of this rather lengthy passage was the money quote:

Cesare Beccaria

 “Does the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator; and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed.”

Beccaria’s passage was the source in Jefferson’s proposed Virginia Constitution of 1776: “No free man shall ever be debarred the use of arms.” By the way, Jefferson carried pocket pistols.

One of Thomas Jefferson’s Pocket Pistols

John Adams wrote of the right of “arms in the hands of citizens, to be used at individual discretion … in private self-defense.”

In 1789, mere days after Madison proposed the Bill of Rights, Tench Coxe, a friend and correspondent of both Madison and Jefferson, wrote that this would confirm to the people “their right to keep and bear their private arms.” Interestingly, neither man corrected Mr. Coxe that it was only within the militia, because it isn’t.

So if the right to bear arms is unrestricted, does that mean you should be able to own a tank, artillery or other heavy weapons? Well, I believe the answer is clearly no. How can I say that? Simple. Words mean things. The Second Amendment gives one the right to “bear arms,” arms that an individual can carry or wear, to protect oneself.

Okay then, what about grenades, bombs, bazookas, etc. Although they can be carried they are not considered weapons of self-defense, and are more prone to cause collateral damage of the innocent as well as the guilty or the aggressor.

Finally, there is the question of having to register your weapon or obtain a license to carry. Is this an infringement of the Second Amendment? Yes it is. Senator Ted Cruz described it well. “Would one need to register or obtain a license to exercise their religious or political beliefs or free association such as the First Amendment delineates? Wouldn’t you think it absurd to require or permit before objecting to unreasonable search and seizure?”

The bottom line is an infringement is an infringement regardless of the amendment they infringe upon, and it is clear that most if not all of these gun control measures infringe upon an individual’s right to keep and bear arms.

Attribution: Stephen Halbrook

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