The Constitution Under Fire

The Second Amendment went to the Supreme Court today.

Supreme Court hears arguments on gun ownership

WASHINGTON (CNN) — The Supreme Court on Tuesday took up gun control, hearing arguments concerning a District of Columbia ban on handguns more than two centuries after the Second Amendment gave Americans the right to “keep and bear arms.”

Lawyers for both sides tried to strike a moderate tone before the court, arguing that there was an individual right to own a weapon, but that governments could impose reasonable gun-control legislation.

Alan Gura, arguing against the ban on Tuesday before the court said the city “simply doesn’t trust the people to protect themselves in their homes.”

But Walter Dellinger, a lawyer for the District of Columbia, said there should be “a reasonable standard” to allow cities to pass gun-control legislation.

A federal appeals court in March had ruled the handgun ban to be unconstitutional.

City leaders had urged the high court to intervene, saying refusal to do so could prove dire.

“The District of Columbia — a densely populated urban locality where the violence caused by handguns is well documented — will be unable to enforce a law that its elected officials have sensibly concluded saves lives,” wrote lawyers for the city.

The District of Columbia reported 143 gun-related murders last year. In 1976, when the handgun ban was enacted, the district’s medical examiner said 135 homicides were firearm-related.

So, there were MORE gun-related murders in 2007 WITH a ban on handguns in effect than there were in 1976 BEFORE the ban went into effect. Oh yeah, I can see that ban really worked to cut down on gun-related murders. *rolling eyes here*

There seems to be a belief with some that our Constitution is a living, breathing document that can be adjusted at will or at the will of some majority.

political debate

Constitution: Living Document or Original Intent?

By David Brody
Capitol Hill Correspondent –WASHINGTON – Conservatives and liberals will debate a variety of issues during the upcoming confirmation hearings for John Roberts.

But the key issue is how a Supreme Court nominee views the Constitution. Is it a “living document” that judges can interpret as they please? Or should judges stick to what the founding fathers intended?

The U.S. Constitution is the supreme law of the land, created by our founding fathers more than 200 years ago.

But the days of George Washington and Thomas Jefferson are gone. And one lasting document has now turned into two competing philosophies. Because in today’s society, some see it as black and white, while others see it a little more blurry.


Our Constitution is NOT a living, breathing document. Our founding fathers obviously possessed great foresight when they wrote it. They understood that a living, breathing document would mean that our leaders could change the Constitution at will, or that the majority could do the same. They understood it because they fled it when they came to America to colonize it. They decided to finally break from the British Empire and create a Constitutional Republic that did NOT rule the people but instead gave them basic guidelines to maintain a peaceful existence, and to guarantee that the government never got so big as to enslave the people.

Alexander Hamilton wrote in the Federalist Papers:

The Federalist No. 78

The Judiciary Department

Independent Journal
Saturday, June 14, 1788
[Alexander Hamilton]

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

According to this, the Constitution is not to be tampered with unless ALL the people agree. The founding fathers were obviously also aware of making sure that the rule of the majority (mob rule) did NOT remove basic rights from anyone or any minority.

There’s some interesting information in Wikipedia on the Constitution as well.


In 1786, a decade after the Declaration of Independence was signed, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays’ Rebellion.

In 1787, to address these weaknesses, the Philadelphia Convention was convened with the charter of amending the Articles. When the convention concluded with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).

Among their objections to the Constitution, anti-Federalists feared creation of a standing army not under civilian control that could eventually endanger democracy and civil liberties as had happened recently in the American Colonies and Europe.[25] Although the anti-Federalists were ultimately unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they laid the groundwork to ensure that a Bill of Rights would be drafted, which would provide constitutional guarantees against encroachment by the government of certain rights.

The Federalists on the other hand held that a Bill of Rights was unnecessary, particularly since the Federal Government could never raise a standard army powerful enough to overcome the militia. Leading Federalist James Madison wrote:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.[26]

Similarly, Federalist Noah Webster wrote:

Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.[27]

One example given by Webster of a “power” that the people could resist was that of a standing army:

Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in 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 pretence, raised in the United States.[26]

The controversy of a standing army for the United States existed in context of the Continental Forces that had won the American Revolutionary War which consisted of both the standing Continental ArmyContinental Congress and of State and Militia Units. In opposition, the British Forces consisted of a mixture of the standing British Army, Loyalist Militia, and Hessian mercenaries.

Federalists, on the other hand, believed that federal government must be trusted and that the army and the militias “ought certainly to be under the regulation and at the disposal” of federal government. This belief was fundamentally stated by Alexander Hamilton:

The power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.[28]

The origin of the Second Amendment also occurred in context of an ongoing debate about “the people” fighting governmental tyranny, (as described by Anti-federalists); or the risk of mob rule of “the people”, (as described by the Federalists). These feelings can be seen in the “a force superior” quote of Noah Webster above, and in contrast, when John Adams wrote of his fears about Antifederalists in the ongoing revolution in France:

The State is in critical Circumstances, and have been brought into them by the Heat and Impatience of the People. If nothing will bring them to consideration, I fear they will suffer[29]

Reaching a compromise between these widely disparate positions was not easy, but nonetheless, a compromise was negotiated with the result being the Second Amendment.


Conflict and compromise

In the early months of 1789, the United States was engaged in an ideological conflict between Federalists, who favored a stronger central government, and Antifederalists, who were skeptical of a strong central government. This conflict was accentuated by the recent news of a brewing, potentially violent revolution in France with similar Antifederal tensions. Also, the conflict in beliefs continued between northern states, that generally favored Federalist values, and southern states, that tended to share Antifederalist values.

Intense concerns gripped the country of the potential for success or failure of the newly-formed United States. The first presidential inauguration of George Washington had occurred just a few short weeks earlier.

Antifederalists supported the proposal to amend the Constitution with clearly-defined and enumerated rights to provide further constraints on the new government, while opponents felt that by listing only certain rights, other unlisted rights would fail to be protected. Amidst this debate, a compromise was reached, and James Madison drafted what ultimately became the United States Bill of Rights, which was proposed to the Congress on June 8, 1789.

The original text of what was to become the Second Amendment, as brought to the floor of the U.S. House of Representatives of the first session of the First Congress was:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. [30]

The Bill of Rights that Madison introduced on June 8 was not composed of numbered amendments intended to be added at the end of the Constitution. The Rights instead were to be inserted into the existing Constitution. The right to keep and bear arms was not to be inserted in Article I, Section 8 that specifies Congress’s power over the militia. The sentence that later became the Second Amendment was to be inserted in the Article I, Section 9, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action.[30] (Additionally, these provisions can all be interpreted as limits on congressional power, a view that has been advanced by supporters of the individual rights view of the Amendment.[31]) Debate in the House on the remainder of June 8 focused again on whether a Bill of Rights was appropriate, and the matter was held for a later time. On July 21, however, Madison raised the issue of his Bill and proposed a select committee be created to report on it. The House voted in favor of Madison’s motion, [32] and the Bill of Rights entered committee for review. No official records were kept of the proceedings of the committee, but on July 28, the committee returned to the House a reworded version of the Second Amendment. [33] On August 17, that version was read into the Journal:

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 person religiously scrupulous shall be compelled to bear arms. [34]

The Second Amendment was debated and modified during sessions of the House on August 17 and August 20. [35] These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the U.S. Senate:

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.

The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe:

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. [36]

On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed. [37]

The Senate returned to this Amendment for a final time on September 9. A proposal to insert the words “For the common defence” next to the words “Bear Arms” was defeated. [38] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The House voted on September 21, 1789 to accept the changes made by the Senate, but the Amendment as finally entered into the House journal contained the additional words “necessary to”:

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. [39]

This version was transmitted to the states for ratification.

From this, I’d say the Second Amendment is clear that not only is a State Militia important for the protection of the State, but that the people too have the right to keep and bear arms.

Therefore it seems to me that the Supreme Court should declare gun bans unconstitutional. However, given how things are today I think they should leave room for reasonable laws on restrictions. After all, the average citizen really does NOT need a machine gun or ballistic missile (though in some parts of some cities it may seem like they do). But there should be NO bans or restrictions on hand guns, rifles, or even semi-automatic guns; especially in the home for protection purposes. Remember the police have NO duty to protect private citizens.

I know I am paying close attention to the news on this important issue. I hope all freedom-loving, liberty-loving Americans are doing the same. And let us all hope and pray the the Supreme Court Justices live up to their real roles of protectors of the Constitution.


~ by swfreedomlover on March 18, 2008.

3 Responses to “The Constitution Under Fire”

  1. Excellent information, Thank you! And yes, I so agree, no gun control is the best!

  2. The pendulum is swinging way too far toward the comfort of communism.

    Once you open that door, all kinds of things can walk through it. Not only that, but the opportunity for silencing those who oppose such open views grows as well as we saw in the Arizona lawyer mess. The AZ Bar Association wants to prohibit any lawyer who believes homosexuality is wrong from being able to act on that belief. It’s a complete 180 from what the founding fathers envisioned:

    • What the founding fathers envisioned, AND put in writing in the Declaration of Independence, was that ALL men (meaning people) were created equal and deserved EQUAL TREATMENT. Freedom OF Religion also means Freedom FROM Religion. While I can respect your views, I would question your then choosing a career or occupation that you knew meant you would have to deal with people or circumstances that go against your belief system. I find myself at odds in believing you have the right to work within the confines of your conscious belief; but at the same time resent that I could be denied a service I may be in need of because your conscious won’t even allow you to direct me to someone who can assist me.

      Your belief is fine, but not at the cost of denying “equality” to another human being. And so the double edged sword is present ever again.

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