The Right’s Second Amendment Fraud

Exclusive: The Senate has beaten back a filibuster from Tea Party Republicans to block debate on possible gun-reform laws in the wake of last December’s massacre of 20 first-graders and six educators in Connecticut. But the setback won’t stop the extremists from continuing to twist the Second Amendment, says Robert Parry.

By Robert Parry

Frankly, I’d have more respect for Sen. Ted Cruz and other Tea Party Republicans if they would recite the Second Amendment as it was written, not the abridged version that they prefer. After all, the amendment is only 26 words long.

Drafted by a congressional committee that seemed a bit challenged in the precise use of punctuation, it reads: “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.”

Sign at a Tea Party rally in Arizona.

But Cruz, R-Texas, and other Tea Party favorites typically lop off the 12-word preamble that explains what the First Congress was thinking when it approved the amendment in 1789. By truncating the amendment, Cruz and the Tea Party obscure the two key motives for the amendment: “a well-regulated Militia” and state “security.”

You see the Second Amendment was not originally viewed as some “libertarian” right to kill representatives of the elected government – as some on the Right now fantasize – but rather the collective right of each state to maintain its own militia drawing from white male citizens who were expected to show up with their own guns. The Constitution also gave the President the power to federalize the state militias for the purpose of defending the Republic.

The Second Amendment should be understood, too, in the context of the follow-on Militia Acts enacted by the Second Congress. They mandated that white military-aged men obtain muskets and other military supplies for service in state militias. President George Washington then took command of several state militias to put down the Whiskey Rebellion in western Pennsylvania.

So, contrary to the Tea Party’s desired “history,” the initial use of the Second Amendment and the Militia Acts was to crush an anti-tax revolt in rural Pennsylvania. A similar uprising in western Massachusetts – the Shays Rebellion – was also fresh in the minds of Washington and other Framers, since it was one reason they went to Philadelphia in 1787 to throw out the ineffective Articles of Confederation and start over with a new Constitution.

The thinking of George Washington, James Madison and other key Framers was that an elected Republic operating under the rule of law as prescribed by the Constitution – with its intricate checks and balances – was the best way to protect American independence and liberties.

Of course, the Framers had a rather distorted view of what constituted independence and liberty. They accepted slavery of African-Americans, excluded Native Americans and denied suffrage to women and some white men. (Indeed, putting down slave revolts became an important role for state militias in the South.)

But the Framers clearly did not embrace the modern “libertarian” notion that disgruntled Americans should have personal arsenals so they can shoot police, soldiers or other government representatives. In fact, the Framers had a word for such activity. They called it “treason,” which was the charge brought against some leaders of the Whiskey Rebellion who were sentenced to hang (although Washington used his pardoning power to stop the executions).

If you’re not sure that the Framers really did disdain insurrection against the new Republic, you can look it up in the Constitution. Treason is defined as “levying war against” the United States as well as giving “Aid and Comfort” to the enemy (Article III, Section 3). Article IV, Section 4 further committed the federal government to protect each state from not only invasion but “domestic Violence.” There’s also language about insuring “domestic Tranquility.”

Incendiary Words

Yes, I know some on the Right have cherry-picked a few incendiary comments from Thomas Jefferson (without seeming to know that Jefferson had very little involvement in writing the Constitution and the Bill of Rights since he was serving as the U.S. representative in Paris). Many other right-wing citations claiming the Founders favored armed insurrection against the elected U.S. government have been taken out of context or were simply fabricated. [See a summary of dubious quotes compiled by Steven Krulick.]

But the key point about the Second Amendment is that it was never about an individual’s right to possess guns without restrictions. It was framed mostly out of concern that a standing federal army could become excessively powerful and that the states should maintain their own citizen militias. [See Krulick’s detailed explanation.]

So, the Second Amendment was viewed as a concession to states’ rights. Many leading political figures – both Federalists who supported the Constitution and anti-Federalists who opposed it – favored maintaining the citizen militias that helped win the Revolution.

Though Madison initially dismissed the need for a Bill of Rights, he recognized that he would have to make concessions to gain ratification of the Constitution, which he had labored so hard to produce. So, in exchange for some key votes on ratification, he promised to push a batch of amendments through the first Congress.

As the militia amendment progressed from Madison’s original wording, one consistent element in the various versions was the understanding that “bearing arms” was connected to “military service” in a citizens’ militia to maintain security, not to any notion of enabling armed insurrection against the legally constituted government.

For instance, a Senate rewording of the proposed amendment read: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

In other words, “bearing arms” and “military service in person” were treated as synonymous. Later, the conscientious-objector clause was dropped and the phrasing was further whittled down to its final form. But the preamble continued to explain what the Framers had in mind, “a well-regulated Militia” to maintain the “security of a free State.”

For generations, the U.S. Supreme Court and lesser courts interpreted the Second Amendment within this context of a collective right of the people to defend the security of their states and country, not a libertarian right for a mob of insurrectionists to possess guns for killing government officials.

Only in modern times, with the lobbying from an increasingly extreme National Rifle Association, has that anarchic view taken hold, gaining limited acceptance in 2008 when five right-wing justices on the U.S. Supreme Court overturned longstanding precedents and asserted a limited individual right to own a gun for self-protection.

However, some on the extreme Right continue to push the envelope, arguing that the Framers wanted individual fighters for “liberty” to have the capacity to inflict massive harm on fellow American citizens and to destroy the nation’s “domestic Tranquility.”

Further, these gun-rights extremists maintain that neither the states nor federal government can do anything to protect the safety of citizens and the security of the nation because the Framers, through the Second Amendment, tied the country’s hands. This right-wing interpretation of the Second Amendment rests on some very bad history or perhaps a willful misinterpretation of the Framers’ intent, which was to establish the rule of law within an orderly Republic.

This dishonesty (or ignorance) from the Right will be on display during the upcoming congressional debate. You can detect the fraud when Sen. Cruz and other Tea Partiers insist on dropping the first half of the Second Amendment. [For more on this history, see Consortiumnews.com’s “More Second Amendment Madness.”]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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23 comments on “The Right’s Second Amendment Fraud

  1. Bob Loblaw on said:

    The vast majority of the gun control/2nd amendment debate consists of one party yelling, THE CHILDREN THE CHILDREN! Whilst the other chants the equally thoughtless FREEDUMB!

    Mr Parry, you illustrate why the word is freedumb.

  2. Don Bacon on said:

    Speaking of history, you didn’t include the events leading up to the Second Amendment.

    “. . . the right to bear arms dates back before the 1st United States Congress, when the first 10 amendments were ratifed, to the English Bill of Rights from 1689, which guaranteed, among other things, that Protestants could bear arms “as allowed by the law.” Indeed, in striking down a Washington, D.C. handgun ban in 2008, the Supreme Court ruled that the right to bear arms derives from a “pre-existing” right to self-defense established after England’s Glorious Revolution.

    “Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents…”

    – By Ty McCormick, FP
    http://blog.foreignpolicy.com/posts/2013/04/05/how_many_countries_have_gun_rights_enshrined_in_their_constitutions

  3. Otto Schiff on said:

    Aside from legal explanations about the right to have guns, there is a statistical problem, that is being ignored. Most gun owners don’t shoot people.
    How do you find and identify the two or three murderous nuts among the thousand of legitimate gun owners?

  4. YellerKitty on said:

    “Most gun owners don’t shoot people.”
    No, Otto, but everyone who shoots people is a gun owner.

    Just a thought … since all these fine, patriotic Americans want to exercise their Second Amendment right to be part of a well-regulated Militia (okay, they do tend to forget that part, but it IS there), I think I see how we can make some deep cuts in our military budget and still give these folks the sense of relevance they seem to be seeking. Let’s just send THEM on our next military ‘adventure’. Then all our nice young National Guardsmen can stay home and do what they are meant to do.
    Win-win!

  5. John Puma on said:

    This is a fine and much-needed article.

    It suffers only in lacking direct citation to and/or transcription of all mention of the word “militia” in the constitution, besides that in the 2nd amendment.

    To wit:

    1) Article One (powers of congress), Section 8, paragraphs 15&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;

    2) Article Two, Section 2, paragraph one:

    The President shall be Commander in Chief of the Army and Navy of the United
    States, and of the Militia of the several States,

    3) Amendment 5:
    No person shall be held to answer for a capital, or otherwise infamous crime,
    unless on a presentment or indictment of a Grand Jury, except in cases arising
    in the land or naval forces, or in the Militia,

    • spencer60 on said:

      This entire article is based on a false premise.

      The language used in the 1700s had a slightly different meaning than it did today.

      For example, the term ‘well regulated’ had nothing to do with the what we think of today as ‘regulation’. Instead it meant ‘well ordered’ or ‘well trained’.

      At the time, without any standing army, the term ‘militia’ meant all the people fit or allowed to serve.

      This fits wit the overall context of the document as well, all the rights in it are individual rights that the government is charged with protecting, not granting.

      Overall this article is typical of the Second-Amendment deny-ers. These people are right up there with ‘birthers’ in managing to ignore the evidence in front of their faces because it doesn’t fit their political beliefs.

      This is why gun control has become the failed and discredited dogma that it is today.

      Rather than having the moral and intellectual honesty to stand up and say that they want to repeal the Second Amendment, they try and argue half-truths that would let them chip away at it piece by piece.

      The Second Amendment is very clear that the government shall not infringe, in any way, the rights of the citizens to keep and bear arms.

      If the gun control industry doesn’t like that, they need to have the same kind of honesty to put up a fight.

      • Anonymous Coward on said:

        The Internet is a wonderful thing, as it allows you to read historical documents from the comfort of you home. The complete congressional record concerning the calling up of the militias for the War of 1812, for example.

        Congress established the standard of training and organization, and provided funds for weapons (including cannons), which were distributed by the States under order from the governors. “Well regulated” meant a proper military organization along the lines of what we now call the National Guard, with Governors the commanders of their states’ militias. When the militias were called up in 1812, they were called to fight alongside the US army, and there was substantial debate as to how the chain of command was supposed to work in the absence of the President.

        • PSzymeczek on said:

          And the Militia Act of 1903 officially designated the National guard and Reserves as the “Well-regulated Militia,” replacing the individual states’ militias drawing from white male citizens who were expected to show up with their own guns.

  6. Don Bacon on said:

    In other words, “bearing arms” and “military service in person” were treated as synonymous.

    Grabbing guns away from everyone who is not in the military is a pipedream. Millions of Americans own guns, and many of them are semiautomatic ones, the AR-15 being the most popular. The US is still somewhat of a democracy, and gun removal from citizens ain’t gonna happen any time soon. Forget it.

    I kind of favor the Hello Kitty version of the AR-15, myself. Click to see:
    http://tinyurl.com/c2kdnub

  7. PSzymeczek on said:

    I’ve done some research, and am coming to the conclusion that perhaps the Militia Act of 1903 rendered the Second Amendment moot when it specified that the National Guard of the various States is the “well-regulated Militia.”

  8. Riptide John on said:

    This is an interesting twist on a very straightforward statement. “Shall not be infringed”. It doesn’t get any simpler than that. As a matter of fact, this is probably the most simplistic of all the amendments. Yet somehow it can still be twisted through liberalism. “Idiotic” is the first word that comes to mind as a response.

  9. Al Alvarez on said:

    Yeller Kitty – you pointed out a reference to Article One, Section that I was not aware of and is part of the Constition adopted prior to the addition of the the Bill of Rights or the first ten amendments….it appears obvious to me (and I am and have been a gun owner since my tees; now 68 years old), that the 2nd Amendment is to support Article 1, Sec. 8.

    Therefore, I am in full agreement with you….

  10. Christopher C. Currie on said:

    If the five “conservative justices” on our Supreme Court were actually the “strict constructionists” that they claim to be, they would have ruled that the Second Amendment applies only to single-shot muskets, single-shot rifles, and single-shot pistols which was how “arms” was defined when the Second Amendment was written and ratified.

    • A ridiculous argument; if that is true then the First Amendment only applies to 18th century printing presses, not TV, radio, or the internet. You might want to read a bit of history before posting.

      • BobG – Not as ridiculous or as ignorant as your below post of the quotes — that Parry/Krulick had just DEBUNKED in the link above “[See a summary of dubious quotes compiled by Steven Krulick.]” Try reading for comprehension sometime…

  11. jim k on said:

    The following is summary of a position that can be found in full at The Rifle on the Wall: A Left Argument for Gun Rights

    This argument relies on two ideas: 1) Defenders of gun rights have the Second Amendment wrong, and 2)They are wingnuts, “disgruntled Americans” who want to “kill representatives of the elected government.”

    Re 2nd Amendment: Sure, introduce the complexities of the various “conservative” and “states rights” impulses that went into the militia clause, but don’t ignore the impulse to empower the citizenry that is also clearly there. At any rate, since when do progressives insist on using the framers’ most conservatives prejudices to limit the rights enunciated in constitutional text? Don’t we celebrate the history of how these rights have been extended, sometimes using constitutional statutes in ways their authors could never, in their wildest dreams, have imagined? Like, you know, gay marriage

    These arguments about the framers’ alleged intent actually confirm that guns were recognized as tools of empowerment, to be distributed as widely as possible among those considered worthy of empowerment, and to be denied to those deemed unworthy of empowerment and eligible for subjugation. Who, in today’s America, do liberals think unworthy of that empowerment?

    But the 2nd Amendment itself is not the main issue; the question of whether gun ownership should be considered a fundamental political right is. Only in the ridiculous political discourse where Barack Obama is a “Marxist,” can citizens’ right to gun ownership be considered a right-wing demand. An armed populace is a populist principle, and has always been part of the revolutionary democratic traditions of the left. The idea that disarming the people in a capitalist state — and one in severe socio-economic crisis, at that — would be some kind of victory for democratic forces, something that might help move us toward an emancipatory transformation of society, is no position on the political left.

    Indeed, underlying this kind of liberal anti-gun rights argument is a false notion of the American capitalist state. It’s a notion that hides the deeply corrupt and undemocratic reality of our “elected government,” as well as the armed violence of that state. It implies that our state is a neutral class-agnostic arbiter, “representative” of all the people. It is not. It is the instantiation of a relation of forces between classes, and in our case it exists to guarantee, by armed force, the hegemony of the corporations and the banksters over the working people and dispossessed. The liberal, democratic capitalist welfare/social-democratic state of postwar Euro-American felicity has reverted, aggressively, to its core class function. We should dispense with any of the comforting illusions about this, and we should all be highly “disgruntled” about it.

    Yes, a lot of people with ridiculous right-wing ideas are among the loudest defenders of the right to keep arms. Maybe liberals should stand up for that right, among others, in militantly progressive terms. Maybe liberals should consider how they have undermined the building of a populist left, by steering discontent into conventional political support for their favored elected dictator, and by complying with right after right, and social benefit after social benefit, being stolen by those same “representatives of the elected government.”

    Is there one liberal gun-control proposal being put forward that makes any move toward diminishing the use of guns by the police? That will take away one gun, one bullet, one drone, or one dollar from the bloated internal security apparatus of the American nouveau police state? From its corporate militia comrades ?

    No. All liberal gun-control proposals seek is to reduce and eventually eliminate the right of ordinary citizens to possess firearms. These proposals treat the armed power of the state with benign indifference. Underlying all is the notion that the American capitalist state we live in should have a monopoly of armed force; that it’s is a neutral arbiter that will use its armed force to promote just outcomes.

    The net effect of eliminating the right of citizens to possess firearms will be to increase the power of this armed capitalist state. It will not be a more pacifistic, but a more authoritarian society.

    If right-wing libertarians are the only people who see a problem with that — well, that’s another symptom of how ridiculous American “liberal-conservative” politics is. Perhaps those who consider themselves on the left should pause from ridiculing those fellow citizens and turn their attention to articulating a militant, left, populist strategy that confronts the state as something other than their friend.

    • Don Bacon on said:

      These arguments about the framers’ alleged intent actually confirm that guns were recognized as tools of empowerment, to be distributed as widely as possible among those considered worthy of empowerment, and to be denied to those deemed unworthy of empowerment and eligible for subjugation. Who, in today’s America, do liberals think unworthy of that empowerment?

      The collorary of this empowerment is that the founding fathers did not advocate a standing army, which we now have in spades.

      George Mason’s Virginia Declaration of Rights had put it this way 12 years earlier:

      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; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

    • art guerrilla on said:

      holy skunk-at-the-party, batman ! ! !
      that was some deconstruction of the limo lib, panty-waist left which pearl-clutch at the merest hint of *actually* opposing Empire in any way, shape, or form…
      that summary would mirror my thoughts, for the most part…

  12. Stu Chisholm on said:

    Mr. Parry, you obviously haven’t read The Federalist. There were, in colonial times, many reasons for gun ownership. First, the majority used them to put food on the table. No McDonald’s or Piggly Wiggly back then. Second, colonists often had to fight off things like bears and “indians,” not to mention the plain ol’ lawless, and since there were few actual organized police organizations back then (the first one appearing in New York), Americans tended to fend for themselves.

    Self-defense has always been a part of this right, as many state versions of 2A reveal. My state of Michigan’s, Article 1 cr. 6 is far less ambiguous: “Every person has the right to keep and bear arms in defense of himself and the state.” This is not atypical; self-defense being placed before state interests.

    The preamble in the federal amendment is purposely separate; it points out the need for sovereign states to have militias, and then defines exactly what a militia is: armed citizens. Again, perusing the Federalist, one can also read about how keeping the militia “well-regulated” at all times would be unfeasible and a form of tyranny in and of itself. Instead, when an emergency would arise, the militia would be called up and “regulated” (trained, regimented, etc.) as needed, as it was in George Washington’s time.

    It’s dismaying to see liberals trying to rewrite history in exactly the same manner as so-called conservatives do, except that their big contention is that we’re a “Christian nation” despite a lack of Jesus appearing anywhere in the Constitution or Declaration of Independence. Any tinkering with history is easily debunked and then your credibility is shot. How might you answer that, Mr. Parry?

  13. It is very clear what the founders meant.

    “The great object is that every man be armed.”
    – Patrick Henry

    “Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.”
    – James Madison

    “No freeman shall be debarred the use of arms.”
    – Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes… 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.” (Quoting Cesare Beccaria)
    – Thomas Jefferson

  14. The fact is that reactionary nut cases, Republicans, playing constitution card to camouflage their servitude to their paymasters– in this case– gun manufacturers. They don’t believe in constitution. I think, It was one of their leaders, George Bush, who had said that constitution was a piece of paper.

    • Don Bacon on said:

      Baloney. There are many fine Americans who own guns, and you will not be able to grab them away.

  15. Bergman on said:

    You might as well speak of the Left’s First Amendment Fraud. The first amendment mentions collectives too.

    How many here in the comments section are employed as a reporter? If you aren’t, you might not have a right to engage in newsgathering activities, if Mr Parry’s reading of the language of the 2nd also applies to the 1st. But no worries, the modern interpretation of the 1st has you covered. Just like the 2nd.

    The government is forbidden from passing certain statutes at the federal level, and thanks to the 14th amendment, that extends to the states as well.

    The current interpretations of the 1st, 2nd, 4th and 5th amendments bear rather distorted relations to how they were interpreted in the late 1700s. Our modern government does a number of things that would have caused good old George Washington to help lead a mob bearing tar, feathers, torches and pitchforks if he found out about them.

    We have a standing army through abuse of a constitutional loophole. The government is allowed to spy on citizens, their papers and effects in creative ways without a warrant. You can stand in double jeopardy because the state and the federal government both want a pound of flesh. And owning weapons suitable for a modern militia is now a crime.