By Clifford Heseltine
There is a lot of interest in and discussion of the concept of Constitutional Carry these days, but what exactly are we talking about? The Second Amendment to the Constitution of the United States says, exactly and succinctly: “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.” This doesn’t give you or me or “the people” the right to keep and bear arms. This amendment was simply an affirmation that the people already have the right to keep and bear arms and that the new federal government had no authority to infringe upon that. That’s not a Constitutional right; it is a natural, civil and Constitutionally protected right, one of 28 such rights listed in the first seven amendments . . .
Historically it was felt that the Bill of Rights was only applicable as a prohibition against the federal government. The 14th Amendment, however, changed that. The Supreme Court of the United States of America (SCOTUS) began “incorporating” the Bill of Rights, which meant these rights belonged to all of the people and all of the states were also enjoined from inhibiting these natural rights. It was not until the Heller decision (District of Columbia v. Heller, 2008) that SCOTUS, with a bare majority (5 to 4) determined that the Second Amendment protected an individual right to keep and bear arms and that this right was finally “incorporated” against infringement by the states.
In my opinion the only reason the Founding Fathers did not make this idea of “incorporation” clear at the outset was that the issue did not seem in need of clarification. As a natural and fundamental human right listed as such in the Constitution it seemed only reasonable that the state governments would recognize this as well. Some did, some didn’t, and only one of the 50 states includes the verbatim text of the Second Amendment in their constitution.
So, what is “Constitutional Carry”? There are essentially two schools of thought: 1. The right to keep and bear arms is a natural, civil and Constitutionally protected right that is absolute and literal (mine), and 2. Despite what the actual text of the amendment says, government(s) can and should infringe on the RKBA in matters they deem important for public safety. (Wrong.)
Here is the historical evolution of the Second Amendment:
As originally proposed by James Madison in June, 1789: “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.”
A House committee reworded this in August and submitted: “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.
In late August the House again modified the amendment and sent the following version to the 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 Senate scribe made some punctuation “corrections”: “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.”
On September 4, the Senate changed the language again: “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.”
On September 9 it was proposed to insert “for the common defence” next to “bear arms”, but this was defeated. The Senate passed: “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.”
And on September 21, 1789 the amendment was accepted by the House containing 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.”
The additional wording about who was the militia and that the government could not require you to serve in a militia if it violated your religious principles was not in keeping with the intent of describing an existing human right. To have included that language would have implied that the militia was an organization created, answerable to and “well regulated” by government itself, which was not the intent, a freedom of religious practice is covered by the First Amendment. But notice what wording remained absolutely consistent from the first submission to the final approval: “The right of the people to keep and bear arms shall not be infringed.” On this particular point there does not seem to have been any controversy.
Given the amount of debate and discussion and back and forth over more than three months is it not reasonable to assume that these learned men ended with EXACTLY the meaning they intended? If they had considered any limitations to this right being the role of government wouldn’t they have enumerated those exceptions? But these men had just endured a long and costly war against a tyrannical state and this was what they were attempting to prevent in the future. To give the government ANY authority to determine who could and who could not exercise a natural right was to change that right into a privilege administered and licensed by the very government that the amendment was intended to provide protection against. It must be kept in mind that not everyone was keen on the idea of a powerful central, federal government and in fact many of the delegates were concerned about the over-reach of this government if it had too much power. (Turns out they may have been right.) If they included in the text exceptions such as “convicted criminals (or convicted felons) or “persons with mental disorders” they would have allowed the government to pass any law making political enemies into criminals who could not exercise their Second Amendment rights.
Therefore, the Second Amendment, regardless of the opinion of SCOTUS, is and was always intended to be an absolute and unlimited right of the people. The purpose of the Second Amendment is to prohibit the government from infringing on the natural and civil right of the people to keep and bear arms to protect themselves, their family, their community, and their property. It was intended that the people should have the ability to raise and form militias to deal with larger threats, either criminal elements or against the rise of a tyrannical state. It was presumed that individuals or communities could adequately deal with the occasional madman in their midst.
It is the ABSOLUTE right of EVERY person to keep and bear arms in defense of him/herself, their property, their community, and their country. This right cannot be denied to you just because you are a criminal or are insane. The answer is not to surrender YOUR rights to the government, but to exercise those rights as intended. Even a criminal has the right to protect his own life and to bear arms for that purpose. A felon just released from prison still retains that right and WILL obtain arms for that purpose if he so desires. Unconstitutional laws will not prevent that from happening and is only relinquishes OUR rights to government control while it affects the criminal not one whit.
The answer to bad guys with guns is fortunately simple: Good guys with guns. (Where have I heard that before?) Gangs in your neighborhood? Make sure your neighbors have and know how and when to use guns. Problem solved. A psychopath bursts into your school or restaurant (or Navy Yard) intent on mayhem? Shoot the bastard. Problem solved. If this solution bothers the bleeding heart touchy-feelies, perhaps they will find more effective ways to control or care for persons with known mental issues. Crazy people cannot be expected to make good or sane decisions, but those who know people who are dangerous crazy need the incentive of knowing they will be shot dead immediately if they get out of line Perhaps then they will have the incentive to restrain them that seems to be missing today.
By Constitutional Carry we mean exactly this: No government agent or agency has the authority to determine what arms you may keep or bear, where or when you keep or bear them, nor how. They may not determine how, when, where or how often you may purchase arms. The only restraint on this right whatsoever is that if you attempt to use your arms to violate another person’s right to life, liberty or property they, their neighbors, and law enforcement agencies authorized by the community to enforce those individual rights may immediately revoke your natural, civil and Constitutionally protected Second Amendment right by making you dead.