July 4 should be a reminder of the purpose of the Second Amendment.
July 4th is today a secular celebration that for many has become just another holiday gathering with friends, family and a charcoal grill topped off with an excuse to enjoy symbolic fireworks and parades. It became a national holiday officially in 1870 and a paid federal holiday in 1941, but it had been celebrated in the nation since the 1770s even without formal federal approval.
But July 4th meant something much more significant to our Founding Fathers and their generation. For them, it was a day to declare independence from a tyrannical government. On July 2, 1776, the Continental Congress, comprised of delegates from 13 colonies (and soon to be sovereign states - not just political subdivisions), voted in favor of the issuance of a Declaration of Independence with John Adams arguing for the remainder of his life that July 2 should be the date of Independence.
Certainly, the steps toward independence had started much earlier such as when the King's forces sought to seize the arms of the citizens at Lexington and Concord in April 1775. However, it was in that Declaration that the delegates enumerated conduct by their existing government which to them evidenced acts of tyranny sufficiently warranting a declaration that they had elected to severe ties and henceforth form their own governments - governments of, by and for the people.
Indeed, several of the colonies voted for independence long before the delegates to the Continental Congress did so. For example, in March of 1776, North Carolina’s revolutionary convention became the first to vote in favor of independence and more than half of the other colonies did likewise before July of 1776. Of course, history demonstrates that the lands that became Tennessee were considered in 1776 to be part of North Carolina.
History teaches that the Declaration of Independence, coming more than a year after the Revolutionary War started, did not establish the liberty, freedom or independence which it declared. The freedom from England's King came when the War ended in 1783. It came not from reasoned debate or political negotiations. Tyranny ended when the citizens of the states took up arms against their prior government and fought until that government ceded authority and control to those sovereign states. Tyranny was defeated not with the diplomacy of words but with armed forces on the fields and in the woods of armed conflict.
Our Founders and their peers knew that liberty and freedom depend by necessity on the capacity of the citizens to acquire, own and possess arms of battle sufficient in quantity and quality to defeat any army that any existing or future government might outfit and control. In their eyes and from their experience, there were no arms that a government should or could possess that could be denied to the citizens who were not part of the government's standing army.
Of course, when the Constitution was proposed for ratification to the states, several of the states refused ratification until the proposed Constitution was amended to address issues that the sovereign states felt were necessary for inclusion but which had been omitted. Most of those omissions were addressed in the Bill of Rights and included the Second Amendment.
But what are "arms" in the constitutional construct? Are such arms, as Tennessee's Governor and Legislature would argue, only those that are in "common use" by the average citizen today? Are constitutional arms limited to those suitable for recreational activities, hunting or self-defense Constitutional arms are those suitable for the purposes for which the Founders and their generation recognized the need to prohibit any future government from denying to the people - arms specifically suitable for military engagement for that was the need that they had experienced and the right that they sought to shield from government infringement.
For example, the Tennessee Supreme Court wrote in 1840, when addressing the state's constitution at that time which only protected the right of "free white men of this State ... to keep and bear arms for their common defence.” In that ruling, the Court concluded that the Tennessee Legislature was prohibited from regulating arms "which are [ ] usual in civilized warfare, or [which] would [ ] contribute to the common defence", that is, the Legislature had no authority to regulate the civilian ownership or possession of weapons suitable for military use. Of course, the Court did observe that such a limit on government regulatory authority did not preclude regulating the misuse of such arms such as to commit murder, assault or to terrorize the public Yet, the Court noted that "the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority." See, Amyette v. State, 21 Tenn. 154 (1840). That last phrase keys off of the concept of tyranny - a status that our Founders well understood but which it appears so many in today's society merely accept as the status quo in the balance of power between the existing governments and the People.
Yet, even the federal Department of Justice recognized the purpose of the Second Amendment in a pleading that it filed with the Supreme Court in the Miller case. In a pleading filed in March 1939, the Department of Justice recognized the Second Amendment's purpose of protecting to civilian ownership and possession weapons suitable for military service. Citing to the Tennessee Supreme Court's Aymette opinion, the DOJ stated: "While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term “arms” as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals."
The purpose of the Second Amendment is clearly political. It is to declare that the government "shall not infringe" the rights of the individual citizen and, consequently, citizens collectively to keep and bear arms. The purpose is not to secure the right of self-defense or hunting, although those are within the scope according to the Supreme Court's more recent opinions. The purpose if one of a political necessity, to secure to the citizens the right and authority to acquire, possess, train with, carry, and be proficient with any category of "arm" that would be suitable or appropriate to outfit a modern military member. It is to protect to the access of members of the unorganized militia to the arms that the soldier of of the government's organized army might be issued. Indeed, given the circumstances of the Revolutionary War, no other construction or context aligns with the demands of the states that the federal government must be forever barred from disarming, as King George attempted to do at Lexington and Concord, the People. Yet, the protection of the Second Amendment applies not only against the tyranny of federal infringements but now by either the constitutions of the separate states and/or the application of the 14th Amendment, the Second Amendment's restriction on the federal government applies with equal force against the State of Tennessee and its political subdivisions and agencies.
Enjoy the opportunity to celebrate the decision of the 13 original states to declare independence from their government and to pursue new ones based on concepts outlined in the Declaration of Independence. |
