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Shall Not Be Infringed

For generations Americans have long debated the meaning of the Second Amendment to the United States Constitution. Many of them read into it what they prefer to believe, interpreting it to fit with their own particular views on the subject. Fortunately for those in pursuit of the truth, the tools of grammar and the annals of history are at our disposal to wade through all of the noise.

First, it is essential for readers to understand that every power reserved to Congress is expressly enumerated within Article I, Section 8 of the Constitution. Not one of those powers pertains to regulations, limitations or prohibitions on firearms; indeed, not one part of the section pertains in any way to firearms, whether specifically or generally. Remember, Congress reserves the power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, which in this case, regardless of subsequent acts or measures, do not extend to the matter of firearms. 

Congress has the power only (1) To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; (2) To borrow Money on the credit of the United States; (3) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; (4) To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; (5) To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; (6) To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; (7) To establish Post Offices and post Roads; (8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (9) To constitute Tribunals inferior to the supreme Court; (10) To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; (11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; (12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; (13) To provide and maintain a Navy; (14) To make Rules for the Government and Regulation of the land and naval Forces; (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; (16) 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; (17) To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings.

Among the enumeration of powers in Article I, Section 8, there is not a single mention, whether expressed or implied, of any power of Congress to regulate, limit or prohibit the sale, distribution, manufacture, use, possession or bearing of firearms. Indeed, the right to keep and bear arms, as enshrined in the Second Amendment, is ironclad, as immutable as the law of gravity. Any law-abiding American keeping or bearing arms is, in fact, by this enumeration and his divine right, forever free to exercise this right, as with any other, and to do so free from harassment (i.e. unreasonable searches and seizures, per the Fourth Amendment), the "Laws of any State to the Contrary notwithstanding" (Article VI, Clause 2).

Those who are desperate to find a Constitutional basis for federal regulations, limitations or prohibitions on firearms predicate their assertions on the Commerce Clause, which is described above as the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. It is important to note that this clause was never intended to authorize the federal government to regulate business or industry, or to determine the bounds of allowable production, pricing or trade. Clearly, the federal government has no jurisdiction in foreign Nations or within the Indian Tribes; likewise, the federal government is equally powerless within the several States. 

As written and as intended, the Commerce Clause applies exclusively to the regulation of commerce; in the language of the period, regulation is synonymous with regularization. As such, the Commerce Clause served only to ensure that interstate commerce (commerce among the several States) would be subject to uniform laws, rules and customs; that no artificial barriers (i.e. taxes, duties or tariffs) nor special privileges in trade or contract enforcement would be implemented between the several States. This means that any related dispute between the several States would not be left to the States independently, but that they would instead be adjudicated by the federal government in accordance with the law. Remember, the adjudication or regulation extends not to the industry nor to the enterprise, but explicitly to the commerce among the several States. The lone objective of this clause was the interest of free trade between the several States; and that, consistent with the character of free trade, commerce between the several States would enjoy the protection of rights under a uniform rule of law.

It is important to note that the term regulate has evolved in its contemporary uses; however, where it appears in the Constitution it refers explicitly to the maintenance of the cited associations. In the case of commerce, regulation thereof was meant only to facilitate free trade among the several states by preventing the institution of artificial barriers between them; and to adjudicate interstate disputes through an impartial judicial system. The same rings true for the militias, which were meant, when employed in the Service of the United States, to serve in cooperation with the several states in order to execute the Laws of the Union, suppress Insurrections and repel Invasions. 

This is the only condition on which the federal government enjoys any authority at all to govern the militia, whereby their power to govern is subject to the authority of Congress and limited to organizing, arming, and disciplining. Indeed, those three powers are precisely the meaning of a well regulated militia. There is unmistakable evidence of this in President Thomas Jefferson's first inaugural address on March 4, 1801, where, in the course of outlining the essential principles of our Government, he referred specifically to a well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them. As it is written, the Second Amendment attaches the term regulated to the Militia, not to the right to keep and bear Arms. After all, it is that right which shall not be infringed; and it is the right of the people, not of the militia. 

As it turns out, the term regulate has no bearing at all on the immutable right to keep and bear Arms. A well regulated Militia is neither a condition nor a qualifier for that right, nor its exclusive purpose. It is, on the contrary, indispensable to the defense of liberty and the security of a free State. 

Note that this is not its exclusive purpose, because it is otherwise a right more commonly exercised in securing, defending and providing for oneself and his family. It is also worth noting that, in the words of the Constitution, the right to keep and bear Arms is essential not for the preservation of the Union, but for the security of a free State. 

The purpose of the Second Amendment, just as with the enumeration of certain rights in the Constitution, was "not [to] be construed to deny or disparage others retained by the people." This accords with the very conception of the Constitution, drafted at the behest of the several states in seeking to enumerate the "few and defined" powers of the federal government. Ultimately, the Constitution grants the federal government no power to define or qualify the rights of the people among the several states. After all, governments don't define the rights of mankind; they merely determine just how many of those rights they will trample. As we are reminded by the Declaration of Independence, the people are endowed with their unalienable rights not by government, nor by any constitution, but by their Creator; governments are instituted among men to secure those rights. 

Now, another argument posits that the right to keep and bear Arms extends only to the Militia, on the basis that Congress, per Article I, Section 8 of the Constitution, reserves the power to provide for organizing, arming, and disciplining, the Militia. The popular claim is that, through its power over the Militia, the federal government also reserves the authority to regulate, limit or prohibit the manufacture, sale, distribution, and possession of firearms. Of course, members of this camp conveniently omit the next part of the clause in question, which applies to the limits of their power in governing only such Part of them as may be employed in the Service of the United States. This particular clause within Article I, Section 8 authorizes the government to provide for organizing, arming, and disciplining, the Militia for the express purpose of suppressing insurrections and repelling invasions. It does not confer any authority upon the federal government in the matter of regulating, limiting or prohibiting firearms within the States or among the people.

In total the term Militia appears six times within the Constitution of the United States. The term appears three times in the clauses just described; once in the authorization of the President as the Commander in Chief over the Militia of the several States when called into the actual service of the United States; once in characterizing its necessity in the security of a free State; and finally once in an exception to the Fifth Amendment when in actual service in time of War or public danger. While some critics of the Second Amendment have claimed that the amendment applies only to the Militia, their criticisms are not only syntactically untrue in accordance with the rules of grammar, but they also ignore the framework of the Constitution, which enumerates the limited powers of each branch of government in its first three articles, whereas the Bill of Rights seeks to secure those "additional guards in favor of liberty" for the people and the States, respectively. 

It's worth remembering that the famed Father of the Constitution, James Madison, wrote strongly in favor of an armed citizenry in Federalist No. 46, where he celebrated the ability of the "State governments, with the people on their side... to repel the danger [of a regular army]." 

Acknowledging that "governments are afraid to trust the people with arms," Madison wrote: 

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of." 

It is for this reason that the Second Amendment follows the First, and that it seeks to preserve the right of the people to keep and bear Arms; this right is most indispensable in the defense of the others which make life worth living, as it stands as the last resort against the "enterprises of ambition" which threaten the public liberty. Thus, in order to defend against the "enterprises of ambition" which threaten the public liberty, it is incumbent upon the people not only to keep and bear Arms, but to properly equip and organize themselves to offset the threat posed by the regular army; it is precisely for this reason that the right to keep and bear Arms is unqualified and unconditional, and that the Constitution decrees that it shall not be infringed.

It is in just this spirit that the Militia is formed; not as part of the regular army, but as consisting of the people of the several States in defense of their liberty. The Militia, wherever formed, organized or called upon in the defense of liberty, sovereignty, or the United States, depends squarely upon the preparedness of the people in their exercise of this most vital right; for these purposes they may be called upon at a moment's notice, and therefore their right to keep and bear Arms serves not only their personal interests, but the general welfare of the people. After all, had the Second Amendment applied exclusively to the Militia, the amendment would have characterized the right to keep and bear Arms as one of the Militia instead of that of the people; moreover, it would have been redundant after Clause 16, which had already enumerated the power of "Congress... to provide for organizing, arming, and disciplining, the Militia." 

What's more, it's important to note that governments don't have rights; only persons have rights. Governments are constituted only by the powers that the people cede to them, or alternatively by the impositions generally tolerated among them. As etched into the Declaration of Independence, and thereby into the very foundation of these United States, "Governments are instituted among Men, deriving their just powers from the consent of the governed." 

Wherever one cites the Second Amendment as a right enjoyed exclusively by the Militia, the individual States or the federal government, it is critically important to remember that the Constitution of the United States does not exhaustively enumerate the rights of the people, but rather the limited powers of the federal government; and that the Bill of Rights does not grant rights but instead seeks to protect some of the rights deemed most vital for the preservation of liberty, state sovereignty and limited government. Indeed, as declared by the Ninth Amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This disposition is subsequently bolstered by the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

Ultimately, the Second Amendment, as with each of the Bill of Rights, serves to protect the rights of the people and the States, respectively; it is unqualified and unconditional. Indeed, the Second Amendment, as unconditional and as indispensable to liberty as the First Amendment, was conceived as a natural check against the risks attending a central government and a standing army, institutions antithetical to liberty and anathema to the very Spirit of '76.

In the Spirit of '76, it is critically important to remember that it was the several States which achieved independence at the conclusion of the War of Independence and upon signing the Treaty of Paris; that Great Britain recognized not one nation but the States severally in possessing the full measure of their sovereignty and independence. It is important to note this in order to appreciate the character of the Articles of Confederation and the later Constitution of the United States. 

The powers of the federal government are derived from the continued consent of the States, respectively, and the States (and the people of those States) respectively assume every power not conferred by them upon the federal government; once that consent is withdrawn, the States individually possess the authority to resume the powers previously conferred. 

As such, the Constitution of the United States was written to specify the "few and defined" powers of the federal government; to make plain that the States and the people respectively possess every power not expressly conferred upon the federal government, and that those powers reserved to the States and the people are "numerous and indefinite". Therefore, should any power fail to appear specifically and unequivocally within the Constitution, it is not authorized by the Constitution, and thus it cannot be made law. The case, then, is unequivocal on the matter of the Second Amendment and the right to keep and bear Arms: it shall not be infringed.


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