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Mythbusters #5: The Second Amendment

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The gun debate is alive and well in the United States, having risen from the ashes of the 2004 expiration of the “assault weapons” ban in the wake of the Sandy Hook massacre. “Debate” is too generous a term: it presupposes the exposition of reasoned arguments in support of opposing viewpoints. In fact, the views expressed in favor and against changing existing gun laws bear all the trappings of ideological debate: intolerance and dogmatism. Indeed, the tone has risen to new levels of vitriol and venom.

One distressing fact of the renewed gun polemic is the amount of misleading information being put out on the meaning of the Second Amendment. I have lost count of the number of myths and distortions I have seen tweeted, posted, blogged and counter-blogged about one of the shortest of the Amendments to the Constitution[1]. So I’m dedicating this fifth edition of Mythbusters to clear-up some of the most common misconceptions about the Second Amendment.

There is, by the way, an enormous body of very erudite scholarship on the Second Amendment and the right to bear arms, throughout history and in the United States. This article is, at best, a very brief overview of the leading arguments and cases: it is not meant to be comprehensive.

we the people

Historical Context

The 27 words of the Second Amendment have caused, and continue to cause, a tremendous amount of controversy, though they seem straightforward enough:

“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.”[2]

In fact, they are quite straightforward. The independent clause “the right of the people to keep and bear arms shall not be infringed” is the core of the amendment. The dependent clause modifies the independent clause, i.e. the right of the people to keep and bear arms shall not be infringed because a well-regulated militia is necessary to the security of a free state. The right of citizens to keep and bear arms was so self-evident, in fact, that it barely made it into the Constitution at all.

The militia system had a history in English law and tradition dating back to the Plantagenet kings of the 12th century, who required:

“that every man in the same country, if he be able-bodied, shall, upon holidays, make use, in his games, of bows and arrows…and so learn and practice archery.”[3]

The history of the English colonies from the first settlements to the Revolution was one of an armed citizenry banding together to defend hearth and home against native attack and foreign invasion, sometimes both.

The delegates to the Constitutional Convention were intimately familiar with the English Bill of Rights – which rights the Revolution was started to protect; independence came later – which guarantees:

“No Royal interference in the freedom of the people to have arms for their own defence as suitable to their class and as allowed by law.” [4]

The English Bill of Rights had enormous influence on the American Constitution and Bill of Rights. The American version goes further than the English bill, to raise the bearing of arms to the level of a natural right, which shall not be infringed. No doubt the memory of the citizen militia of Lexington, Concord and Bunker Hill played a major role in shaping the minds of the delegates to the Convention; so too did British attempts to disarm the citizenry to impose Parliament’s will by force.

At the time of the enactment of the Constitution, five of the original thirteen states already had provisions in their state constitutions for the right to keep and bear arms: Vermont (1777), Massachusetts (1780), Pennsylvania (1776), Virginia (1776), North Carolina (1776). New York’s constitution (1777) contained no enunciated right to keep and bear arms, but did declare a positive duty to the state to arm and organize the militia and to citizens to form it and “be prepared to defend it”: thus implying at least a familiarity with arms, if not ownership. Kentucky entered the Union with such a provision in 1792, as did Ohio (1802), Tennessee (1796), Mississippi (1817), Missouri (1820) and Michigan (1835). Connecticut copied the wording of the Mississippi article in an amendment to their constitution in 1818; Maine became independent of Massachusetts in 1819 with this right protected.

federalistsvantifederalists

Both the Federalist Papers and the Anti-Federalist publications assumed that the public would, of a right, be armed. The Anti-Federalists feared that the new Constitution granted too much power to the new Federal government, especially the power to form a standing army like that of the hated King George. Patrick Henry, in typically dramatic Patrick Henry fashion, argued that freedom was won and would be maintained only by force of arms[5]; that an armed citizenry was not only the necessary and proper shield against foreign invasion, but also the indispensable guardian against domestic tyranny.

In answer to the anti-Federalist fears of a standing army and centralized government, the Federalists also turned to the existence of an armed citizenry. Alexander Hamilton countered:

“If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow-citizens.”[6]

Fellow Federalist James Madison agreed with Hamilton and assured the public that anti-Federalist fears of a central government tyranny were overblown: “the people need never fear the government because of the advantage of being armed.”[7]

Both sides of the original constitutional debate thus agreed with the right to keep and bear arms and applied to “the people” in the broadest sense as a bulwark against tyranny.

The Myths

A great deal of effort has gone into trying to find hidden meanings in those 27 words; in defining them in strange and unusual ways not applied to other amendments; in assigning greater or lesser importance to one part of the sentence rather than the other. From these intellectual gymnastics spring the myths and arguments used to rationalize the modern assault on the natural right described in the Second Amendment.

Myth 1: The Militia Argument

The most pervasive argument used to limit the scope of the Second Amendment is called the “militia argument”. Proponents of this line place all of the weight of the amendment in the dependent clause (“a well-regulated militia”) rather than in the independent clause (“the right of the people”). The framers of the Constitution meant to preserve the militia system only, and only those people serving in the militia therefore have a right to bear arms. Since today the role of the militia system is served by the state National Guards, only those people serving in the National Guard have the right to bear arms.

George Mason answered the question: “Who are the militia? They consist now of the whole people, except a few public officers.”[8] Madison’s first version of the Second Amendment, submitted to House review on the 17 August 1789 read: “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 being religiously scrupulous shall be compelled to bear arms.” (emphasis is mine)

militia Ascribing a right limited only to militia service ignores the purpose of explicitly enacting the Second Amendment. The Constitution transferred the power of arming and organizing the militia from the states to the new Federal Government[9]. To prevent the Federal Government from neglecting the state militias in favor of a national army, and thus creating a tyranny, the Anti-Federalists insisted on the inclusion of an explicit right to bear arms for all people, not just those in militia service. “Before a standing army can rule the people must be disarmed,” wrote Noah Webster[10].

Justice Scalia, writing the majority opinion in District of Columbia v Heller, asserts that the right of the people must refer to an individual right:

“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”[11]

References to “the people” in the First Amendment (“the right of the people peaceably to assemble”), in the Fourth Amendment (“the right of the people to be secure in their persons”) and in the Tenth Amendment (“The powers not delegated…are reserved to the States respectively, or to the people.”) have always and unanimously been ascribed to the people as a whole.

No less a patriot and rebel than Samuel Adams agrees with Justice Scalia, when he wrote in praise of the new Constitution as a document that:

“be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.”[12]

For Adams, as well as Madison and Hamilton, the right to bear arms was a natural right on the same plane as those of conscience, free press, peaceable assembly and petition for redress.

Myth 2: The Hunting Argument

Another common argument goes like this: the people of the American states, being overwhelmingly rural at the time of the Constitutional debates, depended on hunting to supplement their diets, especially in the frontier territories. The Founders’ intent was therefore to preserve gun ownership for hunting, and thus all firearms not suited to hunting are not protected, especially handguns[13].

It is undoubtedly true that American society was overwhelmingly rural, and that frontier families supplemented their diets with game; but there is no foundation to link ownership rights exclusively to hunting. If that had been the Founders’ intent, language around “hunting” would surely have made its way into the Amendment; but no such language was ever debated by the delegates. Furthermore, the inclusion of the militia clause clearly indicates the military purpose to the amendment.

 legalvbanned

There is also the enormous difficulty in separately defining a “hunting” weapon from an “assault” weapon. The overlap is too great and the definitions set by politicians have nothing to do with practical features of function or lethality. Above are just two examples: a popular auto-loading shotgun manufactured by Mossberg and one of the best-selling ranch rifles in America, the Ruger Mini-14. The configuration on top is legal according to the 1994 Federal Assault Weapons Ban, the bottom configuration is banned. The addition of a pistol grip to the Mossberg, which has an 8-round fixed tubular magazine, is sufficient to list it as a prohibited weapon. For the Ruger, the pistol grip, retractable stock and flash suppressor condemn the rifle. They are, in every aspect that matters, the exact same weapons as their legal counterparts. The ban is based on purely cosmetic features.

Hunters are therefore leery when gun control advocates promise to protect their sport. The Remington 700 is a very popular, highly accurate civilian bolt-action hunting rifle. It is also the exact same weapon as the U.S. Army’s M24 sniper rifle. Is it therefore a “military weapon” not suitable to for hunting? There is every reason to believe this rifle would be banned under a “hunting only” interpretation.

 remington700

Myth 3: The Obsolescent Firearms Argument

Supporters of an “assault rifle”[14] ban will often caveat their support for such a measure by allowing that the Second Amendment’s intent is as clear as the wording makes it out to be, but that it was written at the time of muzzle-loading weapons with slow rates of fire. They then assert that the Framers of the Constitution would never have considered such an amendment in the light of the destructiveness of modern firearms.

There are a number of problems with this argument, beginning with a post-dated assumption about the Framers’ intent. Of course, we cannot know with certainty how James Madison or Alexander Hamilton would have reacted to the existence of AR-15’s in the hands of the people, but there is as much reason to suppose they would have been delighted as to suppose the opposite.

One of the key purposes of the amendment is to provide for a well-regulated militia. The militia, in time of war, should be trained and familiar with the standard arms[15] used by the regular army that they would be fighting alongside. In today’s Army, that would be the M4-carbine; there are dozens of civilian versions available of the AR-15 family of semi-automatic rifles. These are “assault rifles”.

While many people would argue that it is useless with today’s volunteer army and high-tech environment to promote familiarity with arms among civilians, that assumption may be overly optimistic. In 1941, the United States faced an urgent need to expand the volunteer military from a few tens of thousands to millions by the induction of draftees; previous experience with firearms and the basics of marksmanship was valuable then.

Additionally, when the Federal government nationalized the National Guard to hasten the formation of the Regular Army during 1942, many state governors called for civilian volunteers to form militia companies as replacements for the departing guardsmen[16]. These men served without pay, furnishing their own arms and equipment. It is easy today to dismiss the contribution of these volunteers: but after Pearl Harbor, 16 states organized home guards. In the early spring of 1942, German U-boats were sinking American ships within sight of New York City, and Japanese troops were expected to descend on Hawaii and perhaps even California and there was little to stop them from doing so. While we hope and pray that there is never again an occasion that would require such measures, prudence dictates that he who wishes for peace should nonetheless prepare for war.

It can be safely assumed that people who dismiss the muzzle-loaded musket have never handled one and are not generally conversant with firearms. The British Brown Bess musket, the standard infantry weapon of the British army and American colonies for most of the 18th century, fired a .75 caliber ball[17] of soft lead at subsonic velocities, which flattened upon impact and created devastating wounds every bit as lethal as a modern high velocity bullet. The rifled musket, much favored by American frontiersmen and sharpshooters, was capable of accurate fire up to 200 yards – which is farther than an untrained marksman is likely to hit anything today with a modern rifle.

 brownbess

At the Battle of Bunker Hill, approximately 3,000 British regulars attacked the colonial breastworks in three desperate charges, finally dislodging the Massachusetts militia when these ran out of ammunition. They took the hill at the cost of 226 dead and 828 wounded[18] – almost 30% casualties. Bunker Hill was exceptionally bloody, but casualty rates of 20% to 30% were not unusual in hard fought battles of the time, especially for the loser[19]. The Civil War Battle of Shiloh, fought exclusively with muzzle-loaded rifles, cost Americans more than 24,000 wounded and killed out of 110,000 engaged[20], a casualty ratio of 22%. And there would be 20 more Shilohs before the war ended.

 bunkerhill_hpyle

The delegates to the Constitutional Convention were, for the most part, veterans of the Revolution, and they would have been intimately familiar with the carnage of war and the power of massed musketry. They would have been under no illusions that muskets were “safe weapons” or “soon obsolescent” and therefore okay for civilian ownership. It would be more appropriate to say that the delegates could not have conceived of a society where Americans massacred their own children while at school.

Myth 4: The Slavery Argument

There is a line of argumentation that seeks to “discredit” the Second Amendment by tying it to negro slavery[21]. The argument is that the right to keep and bear arms was a white man’s right, and that the Southern States demanded its inclusion as the price of signing off on the Constitution. Thus the Second Amendment was not only meant to be a collective right applying to members of the militia, and covering only their obsolescent hunting firearms, it was also an early manifestation of the slave power that was determined to maintain the peculiar institution.

There are elements of truth in the analysis: one of the many intended uses of the militia certainly was to put down servile insurrection. There is ample textual evidence to attest to this in the ratification debates. However, that is where the argument breaks down. “Servile insurrection” is only one of the many uses for the state militias, and not even the predominant one. Other frequently mentioned reasons were putting down domestic rebellions, repelling foreign invasions, enabling the natural right of self-defense and deterring tyranny.

Of all of these reasons, the most frequently mentioned was the deterrence of tyranny. The greatly expanded powers of the new Federal government in the proposed Constitution frightened many patriots who had spent their whole adult lives arguing, and fighting, against the ultimate central authority of Parliament and the Crown. These men coalesced in opposition to ratification as the Anti-Federalists; their qualified support for the constitution was achieved with the Bill of Rights, not just the Second Amendment.

There is no evidence of a sectional quid pro quo for ratification: Georgia was one of the first states to ratify on January 2nd, 1788 with a unanimous vote.[22] The “Big Two” states, Virginia and New York, were the ninth and tenth states to ratify, but only after lengthy and closely divided debate. By the time the first Congress sat on 4 March 1789, only two states had not yet ratified the Constitution: one northern (Rhode Island) and one southern (North Carolina). A close look at the voting by district shows as many anti-Constitution districts in the north as in the south:

ratification

It is also a grave error to assign a purely sectional character to the ratification debates which did not exist at the time. This is understandable: we are heavily influenced by the Civil War. But the North-South sectional divide was not as pronounced in the 1780’s; at least as important was the Large State-Small State divide. At the time of the ratification debates, chattel slavery was still legal in every state of the new Union. In the run up to the Constitutional Convention, Northern delegates had more cause to be worried about insurrection than Southerners, in the wake of the Shay’s Rebellion in Massachusetts.

The Second Amendment was written by white men for white men. One might add that it was meant for white, protestant men. That is also true of the Constitution, the Bill of Rights and the Declaration of Independence, which declared “all men are created equal” but said nothing about the ladies. The whole history of America is our continuing efforts to live up to the high ideals expressed in our founding charters. The fact that we have rarely done so does nothing to invalidate them.

 Myth 5: The Insurrection Argument

“Only a gun-nut would talk about overthrowing the government; besides, only an idiot would stand up to the U.S. Army with shotguns and hunting rifles – they’d be slaughtered.”

Sound familiar? This line of reasoning has surely been brought up in every gun control forum ever opened. It is not a logical argument that disputes the rights asserted in the Second Amendment; rather it is an attempt to discredit the amendment through minimization and ridicule of the protected right, and denigration of those who exercise it.  Since only stupid people could possibly want to own guns, it is up to the smart people to get those guns out their hands lest they prove a danger to themselves. It is, ironically, the gun control version of Mitt Romney’s 47% gaffe: “we know better.”

Firstly, most Americans who lived in the Revolutionary period (1763 to 1815) believed very profoundly in the right of rebellion; they would not be Americans otherwise. How else to explain Thomas Jefferson’s powerful assertion:

“…that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government…”[23]

The Revolutionary generation, having lived through the overthrow of Royal and Parliamentary authority, was extremely sensitive of this right. The Articles of Confederation were deliberately made weak to avoid the establishment of any central authority capable of establishing a new tyranny. The Constitution was almost not ratified due to the fear of a strong, central government. To then say that the right of rebellion does not exist or is somehow demented is to ignore the fundamental sovereignty of the people and demonstrated ignorance of the basic principles of revolutionary America[24].

To then assert that popular insurrection is “doomed to failure” shows an appalling ignorance of history and asymmetric warfare. It goes without saying that a group of civilians armed with shotguns charging tanks with shotguns and hunting rifles would be slaughtered; obviously they would not do so for precisely that reason. Mao said: “the revolutionary moves among the people as a fish through water”; the insurgent strikes where the enemy is weak, and then blends in with the populace when the enemy arrives in strength. The victory of the Chinese communists, of the Vietnamese against France, the US and China, of the Afghans against the Soviets and of dozens of insurrections in the XXth and XXIst centuries demonstrates that popular insurgencies can indeed defeat modern armies and overthrow despotic governments.[25]

All armies, including the U.S. Army, are trained and organized to fight other armies, not popular insurrections. Operation Iraqi Freedom clearly demonstrated this contradiction: the war was won in 90 days, but no military solution to secure the peace was ever found[26]. Until the U.S. was able to reach a political settlement with the moderate majority of Iraqis that restored their sovereignty, the vaunted U.S. Army was indeed stalemated by insurgents (with more than just shotguns and hunting rifles, of course).

 fallujah

It is perfectly true that the United States has never had a truly despotic government; that is no guarantee that it will never have one in the future. It is impossible to know what effect the Second Amendment may have had on this long history of peaceful, civilian rule. It is as plausible to argue that our Republic has flourished because of an armed citizenry as it is to argue the contrary. If despotism ever did come to America, it would be because the American people acquiesced to it. As President Lincoln said:

“From whence shall we expect the approach of danger? Shall some trans-Atlantic military giant step the earth and crush us at a blow? Never. All the armies of Europe and Asia…could not by force take a drink from the Ohio River or make a track on the Blue Ridge in the trial of a thousand years. No, if destruction be our lot we must ourselves be its author and finisher. As a nation of free men we will live forever or die by suicide.”[27]

hitlerThe rise of Hitler and the Nazis in a country as highly civilized, cultured, educated and institutionally strong as Germany should stand as a lesson and warning to all those who say “it can’t happen here.” Our civil rights must be defended every day from enemies both foreign and domestic; by the ballot, by persuasion, by compromise and by negotiation, but ultimately by the bullet if all else fails. President Obama said so himself: “our rights might be self-evident, but they have never been self-executing.”

Truth, Mr. President.

 Thoughts on Regulation

Nothing in the Constitution says that our rights are absolute rights. Common sense dictates, and the history of case law supports, the limited nature of our rights: they end when they interfere with or do harm to another’s rights. The Supreme Court upheld this interpretation of our rights in Robertson v. Baldwin (1897):

“The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors… Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.”

United States v. Miller (1937) also supported Congress’ authority to regulate the sale and transportation of firearms across state lines. In this case, Justice McReynolds upheld the National Firearms Act, which prohibited the possession of a shotgun with a barrel less than 18 inches in length. Even District of Columbia v. Heller (2008),  which is the most definitive Court decision in favor of an individual right to bear arms outside of a formal militia organization, recognizes the authority of states and Congress to regulate the right to keep and bear arms.

I am in favor of regulating firearms to improve their safety, to make their acquisition and use by criminals more difficult, and to track down and punish those who violate the law. I am in favor of efforts to reduce the number of accidental deaths and homicides due to firearms. There are some good proposals being debated, especially a universal background check requirement. But the measures and the means must be proportionate: it does no good to have background checks if no follow-up action is taken when a psychotic person is denied permission to buy a weapon. It does no good if simple measures like tracking sales, ownership and use of weapons in crimes is not mandated and made available to law enforcement with proper authorization and safeguards.

I hope Congress can avoid the circus of an assault weapons ban. It would jeopardize the other measures which have broad public and political support. It would not reduce gun violence one iota. When Congress began to address the problem of fatal traffic accidents, studied showed that higher crash velocities led to significantly higher probability of death. Did Congress ban all cars capable of going over 55 MPH? No, they imposed a speed limit. They mandated safety belts and airbags. They left the responsibility of compliance to the individual. A similar approach would prove more fruitful with firearms than banning them based on cosmetic features. Mandating storage in certified gun cabinets; mandating smart gun technology in all new firearms manufactured or imported; periodic inspection of firearms and recertification of owner training standards; buyback or require conversion of firearms without smart gun technology; track and persecute those who deal in illegal weapons.

A focus on improving safety and reducing access to illegal firearms is the surest way of curbing firearms violence. Americans must nevertheless expect some level of violence to continue as long as we are the world’s largest consumer of narcotics; if traffickers can smuggle in tons of cocaine and heroin, they can surely smuggle in all the firearms they need as well.

Constitution a la carte

There is a natural human tendency to seek agreement and support of our opinions and prejudices. Anything that tends to disrupt our preconceptions of truth is rationalized, minimized and ignored. This pernicious tendency affects people on all sides of politics, including myself, and while the modern GOP seems to be the group most willing to let ideology trump facts and evidence, they don’t have a monopoly on it.

One reason I wrote this summary was to support the Second Amendment, which I continue to believe in as an individual and natural right. Another and equally important reason was to fight the tendency to view the Constitution as an á là carte menu, selecting those rights we agree with and denying those we don’t, or what’s worse, applying them selectively to subgroups of citizens. It is strange and disturbing that the same people, who will idolize the wisdom of Founders in one breath, will promptly condemn them for the grossest stupidity and moral turpitude in the other.

The Constitution is not Holy Writ, though many Americans treat it as such. It is a document made by highly educated and patriotic men, who labored long and hard to take the best principles of public governance throughout history and bring them to America in order to secure their blessings for posterity. It contains, like all of man’s endeavors, some very human errors, beginning with their failure to eradicate chattel slavery. Recognizing the limits of their wisdom, the Framers also established the means to keep the Constitution up-to-date and accessible to the sovereign will of the people. The seventeen amendments that come after the Bill of Rights have done much to redress the most obvious wrongs of the original charter and to apply the high ideals of Jefferson, Madison, Hamilton and others to all citizens.

For those people who sincerely believe that private ownership of firearms is an unmitigated ill, a barbaric relic, they have the established means to amend our charter. They should avail themselves of it. Yet they should bear in mind Jefferson’s warning that rights and governments “long established should not be changed for light and transient causes.”  Today they may do away with a right they scorn, but others, their own countrymen, cherish. Tomorrow, someone else may do away with a right they valued highly.

 Myth_busted

 

 

 

 


 

 Sources and Notes:

[1] Only the VIIIth, IXth and XXVIIth Amendments are shorter.
[2] This is the version actually ratified by the states. The version passed by Congress and sent to the states reads: “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 only changes were the deletion of the extraneous commas.
[3] King Edward III’s declaration of 1363. This was predated by the Assize of Arms of 1252 of King Henry III and the Assize of Arms of 1181 of King Henry II.
[4][4] “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown,” Parliament of Great Britain, 1 William & Mary Sess 2 c 2, 16 December 1689
[5] “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.” Henry, Patrick, “Speech on the Federal Constitution”, Virginia Ratifying Convention, 1788
[6] Hamilton, Alexander, “The Federalist Papers No. 29”, 1788
[7] Madison, James, “The Federalist Papers No. 46”, at 371, 1788
[8] Jonathan Elliot, “The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425”, 3rd Edition, 1937
[9] Article VI of the Articles of Confederation; Article I, Section 8 of the U.S. Constitution.
[10] Webster, Noah, ”An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787–1788,” Paul L. Ford, edition 1971
[11] Scalia, Antonin, District of Columbia v. Heller,2008
[12] “United States of America v. Timothy Joe Emerson – The Ratification Debates.”
[13] Though there is a very active group of hunters who stalk North American big game with long-barreled, large caliber magnum handguns.
[14] I italicize “assault rifle” because the definition of an assault rifle according to the 1994 Ban was so wholly cosmetic and arbitrary as to include many weapons that no one would sensibly consider an “assault rifle”. I don’t consider such broad definitions to be useful and they might, in fact, prove unconstitutional (involving an unwarranted infringement on the protected right).
[15] The 1792 Uniform Militia Act was an early attempt by Congress to enforce standards of militia equipment precisely for this purpose. It met with very mixed success.
[16] For example, both Maryland and Virginia organized militia companies when their state guard units were federalized. U.S. Home Defense Forces Study, Office of Secretary of Defense, March 1981
[17] The caliber of a weapon refers to the internal diameter of the barrel. A .75 caliber musket fired a ball that was three-quarters of an inch in diameter.
[18] Middlekauff, Robert, “The Glorious Cause: The American Revolution, 1763 -1789,” Revised and Expanded Edition, Oxford University Press, 2005
[19] Dupuy, Trevor N., “The Evolution of Weapons and Warfare,” Bobbs-Merrill, New York, 1980. Col. T.N. Dupuy charted the effect over time of the increasing lethality of weapons countered by the increased dispersion of the warriors who used them. The result has been a steady decline in casualty rates (not total casualties) as militaries have adapted to modern weapons through depth, dispersion, maneuver and defensive technologies (like tanks). 
[20] McPherson, James, “The Battle Cry of Freedom: The Civil War Era,” Oxford University Press, 1988
[21] Bogus, Carl T., “The Hidden History of the Second Amendment”, U.C. Davis Law Review 31: 309-408, 1998;
Hartmann, Thom, “The Second Amendment was Ratified to Preserve Slavery”, Truthout.org, 15 Jan 2013;
Mencimer, Stephanie, “Whitewashing the Second Amendment”, Mother Jones, 19 Mar 2008
[22] Georgia was preceded by Delaware (7 Dec 1787), Pennsylvania (12 Dec 1787) and New Jersey (19 Dec 1787).
[23] Jefferson, Thomas, “The Declaration of Independence,” 4 July 1776
[24] Abraham Lincoln agreed. Even while condemning secession as unlawful, Lincoln opined that revolution was a “moral right, when exercised for a morally justifiable cause.”
[25] A more accurate reading of history is that popular insurgencies are capable of maintaining themselves against despotic governments; actual victory almost always requires external support of some form or another.
[26] The “surge” ordered by President George W. Bush did improve the military situation, but its main impact was political. It allowed General Petraeus to convince local Sunni leaders that the U.S. was truly committed to stabilizing the situation in Iraq and changed their perception of the balance of power. Combined with the assassination campaign and radicalism of Al Qaeda in Iraq, General Petraeus was able to arrive at an agreement with the moderate Sunni leaders. It was only after the moderates withdrew their support from the jihadists, that the latter lost their ability to “swim with the people”. It is also significant to note that there was never a significant jihadist presence in Northern Iraq. Why? Because the Kurdish peshmerga (militia) provided their own internal security and eliminated the need for the U.S. to commit troops there.
[27] Lincoln, Abraham, “The Perpetuation of Our Political Institutions,” Young Men’s Lyceum of Springfield, Illinois, 27 January 1838

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