About the Author
Excerpt. © Reprinted by permission. All rights reserved.
THE SECOND AMENDMENT: PUTTING FREEDOM FIRST
NRA President Charlton Heston said it best when he described the Second Amendment as our "First Freedom." It is also our "best defense."
When the forces of evil launched their attacks on America on September 11, 2001, they had more than murder and mayhem on their minds. They were also waging war on the very "idea" of America. More specifically, they wanted, and still want today, for Americans to question who we are and what we stand for. By doing so, the terrorists reason, they can maximize their attacks from afar by weakening America from within.
Standing in their way are determined leaders, the world's greatest armed forces, and a united people. But, more important, also standing in their way is the overwhelming force of what makes America, America-the U.S. Constitution and its Bill of Rights.
Each amendment in this extraordinary document makes America stronger.
But, as President Heston correctly points out, some rights are more important to the whole than others. And the one right that all the others lean on the most is the right guaranteed in the Second Amendment-the right to Keep and Bear Arms. Why? Because nothing precious can be held for long unless we have the ability to defend against its being taken from us-and the Second Amendment guarantees each one of us that ability.
Since the beginning of our republic, external threats like Al Qaeda have come and gone, and that will still be true long after the current war on terrorism has been won. But the real purpose of the Bill of Rights will remain the same as it has for more than two hundred years now-defending life, liberty, and the pursuit of happiness against all threats.
In the post-9/11 world we now live in, Americans-in order to preserve their liberties-must make a renewed commitment to understanding the historical origins of the Bill of Rights.
Our security, our national defense, and our very survival depend on Americans coming together today behind the same beliefs we have come together on so often in the past-the most central of which is that the government is "We the People."
The brilliant men who crafted our form of government fully understood the importance of the individual rights of their fellow citizens. It is equally fortunate that they drew up the blueprints for a form of government that can maintain its strength through the most trying of times and circumstances. Ours is a nation that endures precisely because of its ability to tolerate and survive through war, assassinations, natural disasters, economic upheavals, and a host of other catastrophes that would crush a lesser form of government.
We have the Founders to thank for that. They were rare men of still rarer vision who understood not only the strengths and weaknesses of themselves and their fellowmen but also the lure and corrupting nature of absolute power.
Above all else, our Founding Fathers sought, fought for, and cherished freedom. Once achieved, they strove to protect and conserve that freedom for generations to come-and this is precisely why they insisted on leaving us freedom's legacy, our Bill of Rights.
While the Founders ranked the Bill of Rights randomly, in order of importance, the Second Amendment is America's first freedom.
The anti-gun lobby vehemently disagrees, but there can be no denying that there is no such thing as a free nation where police and military are allowed the force of arms but individual citizens are not.
The Constitution provides a doorway for freedom of speech and of religion and of assembly. And that doorway to freedom is framed by the muskets that first defended liberty at a place called Concord Bridge. Emerson said it best:
By the rude bridge that arched the flood, their flag to April's breeze unfurled, here once the embattled farmers stood, and fired the shot heard round the world.
The American Revolution was fueled by British attempts to confiscate arms in Massachusetts and Virginia. As noted constitutional scholar Stephen P. Halbrook has written: "The British resorted to every possible tactic to disarm the Americans-entrapment, false promises of 'safekeeping,' banning imports, direct seizure and finally shooting persons bearing arms."
King George III failed, and in the two centuries that have followed the birth of our nation, there have been many who have challenged us and tried to take away our freedom. We prevailed and survived. And we will prevail and survive again in the war on terror -as long as we don't forget who we are and what makes us strong.
In the wake of 9/11, a fierce struggle is taking place today between those who place their faith in government and those who retain the Founding Fathers' trust in the people. On no single issue is this struggle more apparent than in the debate over the meaning and role of the Second Amendment.
Those in the anti-gun lobby, who attempt to dismiss the Second Amendment as archaic and irrelevant, claim it is a "collective right" granting states the power to raise militias. As always, the anti-gunners are missing the truth-a point that our Founding Fathers understood. In the end, in a truly free society, it is up to the people, and not the government that serves them, to safeguard that freedom.
That was true in the eighteenth century when the threat was the British army, and it is true today when the threat is international terrorism.
Indeed, the Founders fully expected the people to protect themselves and their liberties from all enemies. Nowhere was this notion more evident than in Patrick Henry's "Give me liberty, or give me death" speech. The context of that oration-the importance of an armed population-has been lost in today's "politically correct" anti-gun climate. Yet, Henry's words are there to defend the embattled Second Amendment. When speaking of the Revolution, Henry proclaimed:
They tell us . . . that we are weak-unable to cope with so formidable an adversary. But when shall we be stronger? . . . Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? . . . Three million people, armed in the holy cause of liberty . . . are invincible by any force which our enemies can send against us.
Are we now to believe that Al Qaeda is so threatening that these words are no longer true? Are we to verify Osama Bin Laden's conviction that we are "weak"?
Whether it's the World Trade Towers or a sole citizen, terrorists target the unarmed. They particularly target those who live in fear, totally dependent on others for protection. If we abandon the Second Amendment and our right to defend ourselves, terrorists are threequarters of the way to victory.
In this age of terrorism, too many Americans seem willing to abandon personal freedoms in exchange for government control, for what they naively hope will be a safe, risk-free life.
As Benjamin Franklin warned, the true danger to our freedom and national character comes from those who are willing to yield real freedom for the sake of the illusion of security.
This danger lurks even more ominously today in the post-9/11 world than at any time in America's history. It is this fear that the anti-gunners are now counting on to sway Americans to their side; only the government can be trusted to protect "We the People" from terror.
In this backdrop, the Bush administration recently set the record straight on the "collective" versus "individual" thrust of the Second Amendment.
In a letter to the NRA ILA's executive director dated May 17, 2001, U.S. Attorney General John Ashcroft affirmed that the "plain meaning and original intent" of the Second Amendment is to protect individual rights. This puts Justice Department policy back on its historically correct and original course.
In a matter of months, the Bush administration was joined by a federal court. On October 16, 2001, the Fifth Circuit Court of Appeals' ruling in U.S. v. Emerson unequivocally repudiated all versions of the "collective right" theories that have been concocted in recent years by anti-gun lobbies and their ideologues.
"This is the most important and favorable Second Amendment judicial decision in American history," said Nelson Lund, constitutional law professor at George Mason University. "A federal court of appeals has unambiguously held that the right to keep and bear arms belongs to individual citizens and rejected the preposterous but judicially regnant theory that Second Amendment rights belong to governments or can only be exercised in the service of a government."
The Emerson opinion-written by Chief Judge William Garwood-noted how the Clinton-Reno Justice Department steadfastly maintained that the Supreme Court's decision in United States v. Miller mandated rejection of the individual right interpretation of the Second Amendment.
"We disagree," Judge Garwood wrote, saying the Miller decision did not resolve the individual versus collective right issue, but "to the extent that Miller sheds light on the matter, it cuts against" the Clinton-Reno position. The court said:
We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.
To correct that deficiency, the court produced its own meticulous eighty-four-page historical examination, concluding:
We have found no historical evidence that the Second Amendment was intended to convey militia power to the states, limit the federal government's power to maintain a standing army, or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.
We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.
The court's decision in U.S. v. Emerson should be read by every American interested in knowing the true meaning of the Second Amendment. It cuts through the distortion and media hype and exposes the real aims of those who press the notion that the right to keep and bear arms applies to only government and not the people.
In its opinion, the court clearly saw the dangers to individual liberty when it defined the Clinton-Reno Justice Department's position as being based on a model where "the Second Amendment poses no obstacle to the wholesale disarmament of the American people." In totally rejecting that position, the court exposed the end game of those who would deny Second Amendment rights to individual Americans.
The ability of the people to bear arms to defend liberty is the immutable right despised by the Osama Bin Ladens of this world and feared by every government that rules through enslavement of its people. It is the "First Freedom"-the right to Keep and Bear Arms-that is taken from the people, followed in rapid succession by the right of a free press, the right to assemble, and the people's right to religious choice and tolerance. There is absolutely no more clear or consistent historical lesson.
A legion of constitutional scholars have described our Second Amendment as the safeguard of all our liberties from examining the words and works of Thomas Jefferson, James Madison, Patrick Henry, Tench Coxe, Richard Henry Lee, Samuel Adams, Noah Webster, Alexander Hamilton, Thomas Paine, Fisher Ames, Elbridge Gerry, and others.
That scholarship did not simply speak to our ability to build, buy, borrow, collect, and inherit firearms, or to-as the anti-gunners like to say in mocking tones-"shoot ducks." The Founders clearly intended the Second Amendment to be a guarantee that Americans will always have the right and means to protect themselves from criminals, despots, and international terrorists.
Thomas Jefferson, who confronted his era's version of terrorism in the Barbary Pirates, studied the works of the great eighteenthcentury Italian criminologist Cesare Beccaria. He penned what can be described as an older rendition of today's popular slogan: "When guns are outlawed only outlaws will have guns."
Thomas Jefferson took the time to translate the following from Beccaria's Italian and laboriously copied it in longhand into his own personal file of great quotations:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty- so dear to men, so dear to the enlightened legislator-and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.
The Founders unanimously agreed. "The great object," thundered Patrick Henry, "is that every man be armed."
In short, the Founders and an army of scholars dating from the republics of Plato and Rome to modern-day America agree: selfdefense works-criminals fear armed citizens and so do terrorists.
And yet, the anti-gunners' argument that we can "all live with a little less freedom, if that's what it takes to live," is a seductive one-even to some who own guns. It's an argument that is not new, as we see in returning to Patrick Henry and the words he spoke at Virginia's state convention on ratification of the Constitution:
Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.