Tenth Amendment Center: Muskets to AR-15s: Weapons of War or Enemies of Tyranny?
Many people simultaneously claim to support the Second Amendment while insisting the federal government should be able to ban “military-style weapons.” These are actually mutually exclusive positions. In fact, the whole purpose of the Second Amendment was to ensure the people would always have access to “weapons of war.”
On February 14, 2018, Nicholas Cruz shot and killed 17 students from Marjory Stoneman Douglas High School in Parkland, Fla. Cruz, 19, had been suspended from the school for disciplinary reasons. Despite a long history of bad behavior, as well as attention from law enforcement, Cruz was not treated as a legitimate threat. In an attempt to reduce the school-to-prison pipeline, the district failed to report activities and generally kept him under the radar of local law enforcement agencies.
Attorney General Jeff Sessions also admitted that the FBI failed to act on numerous reports of erratic and threatening behavior on the part of Cruz.
Despite government failures at both the local and federal level, the public debate predictably turned to the issue of gun control with specific focus on the ban of “military style” rifles, or “assault rifles,” as they are often called. In one school, students were instructed to write letters to representatives asking them to implement stricter gun control regulations.
A common refrain from both sides of the debate is, “No one is saying that military weapons should be in the hands of civilians.”
Former President Barack Obama said, “Weapons of war have no place on our streets,” and, “our law enforcement officers should never be outgunned.”
Many conservative media pundits agree. In the process, they concede a crucial point that was a central reason for the ratification of the Second Amendment: The People must have the means by which they can resist a tyrannical government – means rendered ineffective if we surrender the right to be on a level playing field when it comes to firearms.
As Ryan McMaken explained in a recent article, the origins of the militia trace back to 17th century England when Americans resisted the standing army sent by the king to crush dissent. McMaken shares the insight of British historian Marcus Canliffe regarding the origins of American military institutions and the compromises reached between a centralized military capable of suppressing dissent and a reasonable force needed to maintain order:
“A compromise was reached. First, a small regular force was to be maintained: this was the actual foundation of the British standing army. Second, there was to be a nationwide militia, composed of civilians who would — as in earlier days — be summoned in time of need. The militia, however, was to be under civil law, and to be organized locally by the lord lieutenant of each county. It was thus decentralized and divorced from royal control.”
In the colonies, standing armies were viewed with skepticism (hatred, actually), and this was especially so after the British Army was sent as an ultimate enforcement mechanism for the various taxes and other acts imposed on the colonies by the Crown. As the Constitution was being discussed and debated, one of the most hotly contested objects relating to the powers of the new Congress was its ability to raise armies.
During the Virginia Convention, Patrick Henry famously observed that “A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment?”
Henry went on to say that “the clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made?”
Clearly, Henry’s denunciation clearly and emphatically rejected the centralization of power. He feared to give what he called a “central government” the power over both the sword and the purse. He observed that any attempt to restrain government in such an instance “would be madness” and thundered “you will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment”. Henry concluded this opening barrage by asking “of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.”
This proclamation by Henry provides a succinct summation of the general beliefs of a large portion of the Americans during the ratification period, a belief which led directly to the establishment and adoption of the Second Amendment.
Most States, Virginia included, ratified the constitution on the basis that “further declaratory and restrictive clauses” upon the general government should be added. And among the specifics, Virginia asserted in her ratification instrument that “the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.” [Emphasis added]
Virginia declared as a condition of ratification that “standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.” [Emphasis added]
Likewise, New York, as a condition of ratification, insisted very similarly to Virginia that “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.”
Clause XIII of the Pennsylvania Declaration of Rights guarantees “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” [Emphasis added]
Suffice to say that the founding generation had an immense and universal fear of standing armies. James Madison explained that “a standing military force, with an overgrown Executive will not long be safe companions to liberty.” St. George Tucker wrote the first systematic commentary on the Constitution. He provided further context to the right to bear arms and its role in preventing standing armies when he pointed out, “Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” A more thorough discussion of these concepts can be found HERE.
The Second Amendment thus came about as a means of preventing the need for standing armies by keeping “the militia,” or as George Mason asserted “every able bodied person,” under the auspices of the individual states – in other words, out of the immediate control of the general government.
In his book The Founders’ Second Amendment, Stephen P. Halbrook describes Pennsylvania Senator William McClay’s concerns as written during notes from debates that would result in the enactment of the 1972 federal Militia Act; namely, that Alexander Hamilton and his faction were instigating war with American Indians and foreign nations to justify raising an army that would “awe our Citizens into submission.”
Roger Sherman of Connecticut commented that man had an essential right “to resist every attack upon his liberty or property, by whomsoever made.” [Emphasis added.]
The intent of the Constitution and historical background are irrefutable: a civilian, decentralized force was viewed as the optimal means by which forces loyal to a king, or central government could be held in check, should they become tyrannical in nature. The government, the media and the education system have successfully indoctrinated the people into believing that our safety lies in our ability to defend ourselves but only extends so far as to render us subservient to the capabilities of the government to defend itself from us.
In other words, the polar opposite of the purpose of the Second Amendment.
In 1794, George Washington marched troops into Pennsylvania, absent the required request from the governor, to quell a rebellion over a Whiskey Tax. The Whiskey Rebellion came about after the urban/Hamiltonian faction of government used its power to impose a tax on its opposition, the agrarian/Jeffersonians. When the rebellion occurred, the federal government used its might to suppress opposition in a manner in contravention to the law.
From Wounded Knee to Waco, we can see what happens when a civilian population is unable to defend itself from government. Worldwide, over two hundred million lives have been lost after governments disarmed their citizenry.
Yet we continue to buy into the insane notion that “We the People” are incapable of bearing arms equal in power and effectiveness of that of the military, the standing army. Even the definition of commonly-used firearms has been changed to fit the modern anti-gun narrative:
In his 1828 dictionary, Noah Webster described a musket, the weapon used by colonial militias, as “a species of firearms used in war.” In other words, it was once a given that civilians, i.e. the militia, would have the very same firearms as the military.
Merriam Webster recently changed its definition of “assault rifle” to the following: any of various intermediate-range, magazine-fed military rifles (such as the AK-47) that can be set for automatic or semiautomatic fire; also : a rifle that resembles a military assault rifle but is designed to allow only semiautomatic fire (emphasis added).
A federal court in Massachusetts recently held that such rifles are not protected by the Second Amendment and may lawfully be subject to regulation, and even an outright ban. The ruling is problematic, however, for several reasons, the most blatant being a federal court was ruling on a state firearms law. Under the Constitution, as ratified, they have no legal authority to do so. According to the Tenth Amendment, this matter was reserved to the states when they ratified the Constitution.
Second, the Second Amendment doesn’t apply to any model or type of weapon; it applies to the general government, meaning Congress. The Amendment is not a means by which the right to keep and bear arms was granted to the people and the states. It is a restriction against the general government prohibiting it from regulating firearms at all.
Note the language used in the above case by Massachusetts Attorney General Maura Healey:
“Today’s decision upholding the Assault Weapons Ban vindicates the right of the people of Massachusetts to protect themselves from these weapons of war…and we will not be intimidated by the gun lobby in our efforts to end the sale of assault weapons and protect our communities and schools.”
Those seeking to restrict the right to “weapons of war” cite D.C. vs. Heller, in which Justice Antonin Scalia explained that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” What the Court is implying is that “assault rifles” are not subject to Second Amendment protection, which is, again, a total fallacy given the history and intent of the Constitution as ratified.
Rifles that simply look like military rifles are banned in many states, or at least must be registered. And now we are seeing bans in local communities as well. We have become so conditioned to this false notion that civilians should not be equally as well armed as the standing army the founders so distrusted, that now we are accepting bans on guns that simply resemble such weapons.
Patrick Henry’s worst fears have materialized and the general public, uneducated on their own history, is largely clueless.
Tenche Coxe writing in The Pennsylvania Gazette, Feb. 20, 1788, asked “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom?” He continued by affirming that “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
With the average American gleaning their “understanding” of the Second Amendment in particular, and American history in general, from agenda-driven academics and talking heads in the media and on talk radio, such basic arguments are being capitulated. As a result, we are in the process of surrendering a fundamental tenet – our ability to defend ourselves from personal assault as well as from a proven threat by the very government imposing these unlawful restrictions. Our founders are rolling in their graves.
Note: Carl Jones contributed to this article. He is a former active duty U.S. Marine, and a Certified Firearms Instructor. He is a contributing writer for the Abbeville Institute and a member of the Society of Independent Southern Historians.
Suzanne Sherman
April 21, 2018 at 08:09AM
