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THE SECOND AMENDMENT

By Phillip Lehmkuhl

October 13, 2015 - 12:44 PM


The following article was written by local attorney Phillip Lehmkuhl. All opinions expressed are those of the author and do not necessarily represent the views of MVOhio.net as a whole.

MVOhio.net would like to express our gratitude to Mr. Lehmkuhl for the time he spent researching and writing this article.



The Second Amendment to the U.S. Constitution consists of a single awkwardly written sentence:

“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.”

For hundreds of years, a debate has raged over the limits, if any, of such a right. The leading proponent of gun ownership lists in recent years has been the National Rifle Association (NRA) which has the last half of the Second Amendment engraved in stone upon its headquarters.  To the NRA, the first half of the Second Amendment does not exist.  To them, the Second Amendment simply says: “The right of the people to keep and bear arms shall not be infringed.”

The political divide over gun rights is largely a rural-urban and male-female divide.

Polls show those who live in rural areas tend to favor gun rights, but those who live in urban areas do not.   Polls showmales favor gun rights, females do not.  This is not difficult to understand.

The rural male often owns a rifle and/or shotgun for hunting purposes, and have the weapon ready at hand for use to protect the family from harm.  The Sheriff is unlikely to respond quickly enough if called for help. The Sheriff is unlikely to arrive before the harm befalls the family.  Polls show the rural male sees family protection as his personal responsibility.  Rural females enjoy the bounty obtained via hunting and more readily accept the idea that weapons serve an essential role in family protection.

Weapons for city dwellers are viewed differently.  Polls show that urban females usually do not hunt, nor do they as often enjoy game shot by the men of their family.  They do not value hunting.  Polls show urban males hunt less often than rural males.  An urban male may purchase a handgun for family protection purposes, as may the urban female, but handguns in the home are often viewed by urban females as a risk to the well-being of their children, if discovered by children and improperly used.  Urban dwellers are more likely to rely upon the police for their safety.  However, the police usually arrive too late to prevent harm.

These same urban / rural divides over gun ownership existed in colonial days, but to a lesser extent.  A resident of Colonial Philadelphia was less likely to own a musket than was his neighbor 50 miles outside Philadelphia, who lived on a farm.  Urban dwellers hunt less then rural dwellers.  Moreover, even in Colonial Philadelphia, public safety was a governmental function, and inhabitants more often relied upon the government to insure their personal safety.

The Founders of our nation had a different and more expansive view of gun ownership than do we.  They lived through the Revolutionary War, and the evils leading up to it.

They knew that in areas under British control, firearms were routinely confiscated.  The founders also knew that the American musket, in the hands of the man who owned it and was skilled in its use, defeated the mightiest military force on the planet at the time, i.e. the British Army.

The Founders knew that militias, comprised of ordinary male citizens who fired their own weapons, won our freedom from Great Britain.  Having lived it, they knew widespread gun ownership was the single biggest guarantee available against future governmental oppression or foreign invasion.

The value of widespread gun ownership should not be discounted.  In the days leading up to Pearl Harbor, the Japanese high command debated the wisdom of an invasion of California.  Admiral Yamamoto famously warned the Emperor: “You cannot invade mainland United States.  There would be a rifle behind each blade of grass.”

Moreover, history tells us that every dictator, upon assuming power, seizes all forms of mass communication and confiscates all weapons.  Freedom and widespread gun ownership are therefore intertwined.  Personal freedom and safety are safeguarded through gun ownership, and national freedom and safety are also enhanced.

The Founders were acutely aware of the heavy price paid by the Colonies to secure their liberty from British oppression.  They recognized that the universal right to bear arms would operate to safeguard that liberty from future tyranny imposed by a government through its standing army. 

St. George Tucker was a prominent legal scholar in the years surrounding the adoption to the Constitution.  Concerning the Second Amendment he wrote:

“This may be considered as the true palladium of liberty…The right to self defense is the first law of nature.  In most governments it has been the study of rulers to confine the right within the narrowest limits possible.  Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext, whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

We cannot begin to understand the scope and purpose of the Second Amendment without an understanding of the times surrounding its adoption.  Scarcely 100 years before our Constitution was adopted, the Stuart Kings of England, Charles the Second and James the Second, succeeded in using select militias loyal to them to disarm their Protestant opponents.  This historical experience taught our founders to be extremely wary of concentrated military forces run by the State, and to be jealous of their own arms.

When English Protestants succeeded in deposing the Stuart Kings, they accordingly obtained, from William and Mary, assurance in the Declaration of Rights (which was codified as the English Bill of Rights) that Protestants would never again be disarmed.  This English right to bear arms (from 1689) has long been understood to be the predecessor to our Second Amendment little more than 100 years later.

Many of our Founders were attorneys, schooled in the teachings of Lord William Blackstone on English law, as his 4 book treatise on English Common Law was published between 1765 and 1769.  Blackstone cited the arms provision of he English Bill of Rights as one of the fundamental rights of Englishmen.  It was, he said “the natural right of resistance and self preservation.”

Of course, the Founders were also well aware of how King George, in the 1760’s and 1770’s, began to disarm the inhabitants of the most rebellious areas in the Colonies, over the objections of the Colonials who invoked their rights as Englishmen to keep and bear arms.  They knew, from personal experience, that successful resistance to governmental oppression was impossible without an armed populace.

The following language from the Declaration of Independence is well known and is often taught to school children:

“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

It was no accident or mere coincidence that Thomas Jefferson immediately thereafter penned these words:

“That to secure these rights (life, liberty and the pursuit of happiness) governments are instituted among men, deriving their just powers from the consent of the governed…That whenever any Form of Government becomes destructive of those ends, it is the right of the people to alter or abolish it, and to institute a new government.”

Thomas Jefferson, the primary author of the Declaration of Independence, and all other signatories to it, knew exactly what they were doing.  They were declaring that they and all men had the natural right to depose an oppressive government, by force of arms if required, to safeguard their liberty.  Indeed, the Declaration of Independence is dominated by a long list of grievances against King George, included amongst which were:

“He has kept amongst us, in times of peace, standing Armies without the Consent of our legislators.”

“He has affected to render the Military independent of and superior to Civil power”.

“He has abdicated government here, by declaring us out of his protection and waging war against us.”

“He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.  He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny…”

Confronted by a tyrannical government, they exercised their inalienable right to “alter or abolish” it.  Through the adoption of the Second Amendment, the Founders insured that successive generations of Americans would have the means to “alter or abolish” any and all future forms of tyrannical government.

To be sure, a gun, like any other tool in the hands of man, may be used for good or evil.  Widespread ownership of guns insures widespread abuse of guns.  Scarcely a month goes by without a prominent news story about mass killings of innocent Americans by other Americans.  Ordinary citizens in search of entertainment are murdered in movie theaters.  Innocent school children are slaughtered in their schools.  A congregation in South Carolina is decimated by a racist with a gun.  The list of abuses is seemingly without end, but none of this should surprise us.  No other country in the world has as large a percentage of its populace armed with deadly weapons.  Misuse of weapons in the United States is widespread because gun ownership is widespread and without question we could diminish the frequency of mass slaughter and gun violence by banning the private ownership of guns.

If we did, law-abiding citizens would be defenseless.  Guns would be possess by three classes of people; the police, the military, and the criminals.  Banning private ownership of guns would however require repeal of the Second Amendment, through Constitutional Amendment.

Repeal of the Second Amendment might be politically possible.  Only a small percentage of our population hunts.  A much larger percentage of our population would be unwilling to surrender the guns they own to safeguard their homes and family from the criminal acts of others.  Our national right to self-protection would be all but extinguished by a repeal of the Second Amendment, and our personal safety would be exclusively entrusted to the police and sheriff of our land, who are unlikely to arrive at our homes in time to save us from serious physical harm.

Sir William Blackstone wrote that this “right of self-preservation” permitted a citizen to “repel by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”  (l. Blackstone pages 145, 146)

American voters however, when pondering the wisdom of a repeal of the Second Amendment, would do well to consider that our very first Congress, in the first session of its existence in May of 1792, in passing the first Militia Act ordained:

“That each and every free able bodied white male citizen of the respective States, resident therein, who is or shall be of the age of eighteen years, and under the age of forty five years (except as herein excepted) shall severally and respectively be enrolled in the militia.”

Our first Congress thereby recognized the value to the nation of near universal gun ownership, and training in the proficient use of weapons.  Our first Congress thereby promoted not only the national defense against invasion and conquest by foreign powers, but also safeguarded the new republic against future tyranny from domestic sources.  Our founding generation realized that the Second Amendment may be the Amendment of paramount importance above all others, for its existence helps to safeguard all other rights enumerated in the Bill of Rights.

Joseph Story, a respected legal scholar of his time, wrote in 1790, before the Constitution won final adoption, that the Second Amendment was important for 3 reasons.  A militia of all able bodied males with guns would be (1) useful in repelling invasions, (2) would render large standing armies unnecessary and, (3) would enable the people to better resist tyranny.

It is this final reason, the resistance to tyranny which may provide the strongest rationale for the existence of the Second Amendment.

It is worth remembering that our Constitution, in its preamble, begins with the following sentence:

“WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.”

It should not be disputed that WE THE PEOPLE intentionally included the Second Amendment within the list of rights which cannot be “infringed” by the government as a means of which to “secure the Blessings of Liberty to ourselves and our Posterity.”  A well-armed populace would serve to deter any future despot from tyrannical rule in the same way our widespread private ownership of guns deterred the Japanese from invading our shores in World War II.

Such a future despot would know, as Admiral Yamamoto knew, that there would be “a rifle behind each blade of grass.”  Future Sons of Liberty (and daughters) would defeat and depose such a despot in the same way, and by the same means, King George was defeated and deposed, via weapons personally owned and personally fired by We The People.
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Comments *

1) Re: The Second Amendment
Written by Calc on October 13, 2015, 03:05:58 PM
I only skimmed the article.  This is my view on our Constitution.  By the GRACE OF GOD, our founding fathers got it right.  By the GRACE OF TODAY'S STUPIDITY, we are destroying our country.  I am a female flirting with 80.  I have a concealed carry permit and I hit center mass 9 times out of 10 shots on the firing range (which I visit often).  Don't mess with me or our Constitution.

2) Re: The Second Amendment
Written by mz gulagg on October 13, 2015, 09:15:01 PM
Belushi, a really interesting history.Thanks.
   My base defense of the 2nd amendment is this; would the gun owning founding generation you give a good history of have ratified the constitution  if it had ANY suspicion the the 2nd amendment DID NOT mean individual right to have guns and left open the possibility of government confiscation of guns? I doubt the constitution would have received even one vote if they thought so.We would have NO constitution had that been the understanding.
   To modern anti gun types ,the constitution gave a means to outlaw private ownership of guns,the amendment process.That is the ONLY American means of getting rid of guns.

3) Re: The Second Amendment
Written by cateyes on October 19, 2015, 05:15:07 PM
  when this hit I read asap and very much enjoyed the back history lesson.

 I loved this so much I shared all over the net with friends by email and yep posted it on Facebook!

 Thank you, Phillip, for taking the time to write/share our nation's history.

 

4) Re: The Second Amendment
Written by teecatness on October 30, 2015, 05:39:00 PM
Since the unsollved homicide at my corner this summer, I "pulled the trigger" and got my concealed carry license.

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