Tuesday, June 10, 2014

Militia means you and me




Ellie Kinnaird’s interpretation of the Second Amendment (“2nd Amendment never said right to bear arms was absolute,” DN, May 27) is an interesting work of fiction, but its basis in historical precedent and established jurisprudence couldn’t be more mistaken.

Ms. Kinnaird’s fantasy vaguely refers to an 1875 Supreme Court case wherein she alleges “that the Second Amendment applies to the government, not an individual gun owner.” A closer reading of the 1875 Supreme Court case United States v Cruikshank affirms what Americans have long known: that the right to keep and bear arms is a fundamental right neither granted nor revocable by the government. To wit: “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.”

Ms. Kinnaird’s understanding of grammar is no better than her understanding of law. The prefatory clause of the Second Amendment (concerning “A well-regulated milita …”) does not limit the operative clause (“the right of the people to keep and bear arms …”). One would indeed wonder why a Bill of Rights explicitly designed to enumerate fundamental individual rights would need to grant the right of its organized militia to keep and bear arms.

But since Ms. Kinnaird is determined to conflate the prefatory clause with the operative clause, she would also do well to consult the definition of militia. The Second Amendment does not specify the organized militia, the national guard, the state forces or even the reserve militia. Instead, the second amendment broadly referred to the militia, whose definition is found in the text of the Militia Act of 1903 thus: “the militia shall consist of every able-bodied male citizen … who is more than eighteen and less than forty-five years of age.” So even if the Second Amendment was intended to be a collective right, it would still appear to apply to the majority of our adult citizenry.

Ms. Kinnaird and I agree on one thing, though: the Supreme Court will not protect us. Protecting us is the responsibility of neither the Supreme Court n or the police, as evidenced by the 1981 Supreme Court case Warren v District of Columbia. The responsibility of protecting one’s self ultimately belongs to that individual, and that fundamental responsibility (and the corresponding right to arm one’s self) should not, and cannot be abrogated entirely by the government, well-intentioned as it may seem.

She’s correct that no right is absolute, but we limit those rights cautiously and judiciously. Ms. Kinnaird decries her detractors as not having read Heller; based on her misinterpretations I wonder out loud if she’s ever read the National Firearms Act of 1934, United States v. Miller, the Gun Control Act of 1968, the Firearms Owners’ Protection Act of 1986, the Violent Crime Control and Law Enforcement Act of 1994 or McDonald v. Chicago. If she had, Ms. Kinnaird would find that firearms are already heavily regulated, and that nothing in the Heller decision reverses those heavy restrictions.

Should Ms. Kinnaird venture bravely into the extensive corpus of literature left by our founding fathers, she would also discover a long and rich tradition of individuals keeping and bearing arms. I’d suggest she add James Madison’s Federalist 46 to her reading list; it will serve her well when she contemplates the meaning of the second amendment and the intentions of its architects.

Armed with information and historical context, Ms. Kinnaird may better understand why Americans rightly revere the Second Amendment as sacrosanct. And why the vast majority of Americans are absolutely unwilling to give up that individual right.

Michael Helms is a senior history major at N.C. State University.


  1. Ms. Kinnaird should review the foundation for the 2nd Amendment, which is still valid today, despite the attempts of the statists to pervert it, Madison's wording, to wit:

    "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"


    Yes, I know it's Wikipedia, but it's still an accurate phrasing.

    This Right, and the other Rights we have as Citizens, are based in large part on Common Law, Blackstone, and other worthies of that time, and the Rights are reinforced by the DOI, BOR, and Constitution, not granted by it, as Brock knows, I know, and many others know, and there is no government that can diminish them. Ms. Kinnaird is a statist, and she will never agree.

    1. On top of all that, is our Natural Right, which trumps all.

    2. Always interesting to see people who try to dillute or deny the second ammenment of the constitution, but will cite other consyutional ammendments when it serves their agendas.

  2. "She’s correct that no right is absolute, but we limit those rights cautiously and judiciously."

    And you were doing so well, Michael. For the first time, for the last time:

    It is the nature of a right that it is - and must be - absolute. If their are codicils, appendices, restrictions, howevers, and buts, then it is a privilege, granted and controlled by others.

    Thus endeth the lesson.

    1. Thus endeth the lesson.

      :) Very good.

    2. "It is the nature of a right that it is - and must be - absolute."

      Nice sentiment, but misleading. All things cognitive, like rights, are contextual. In this instance the context is, to quote Jefferson, "within limits drawn around us by the equal rights of others." F'rinstance, you do not have the right to bear arms upon private property if the property owner doesn't allow it. His property rights trump anything about anyone else, since those are primary. But you do have the right not to go on his property.

      What there can't be, are exceptions, and especially not exceptions created by the very institution charged with protecting the rights in the first place. As far as grammar, the first clause in the 2nd is plainly an explanatory clause, not a qualifying or conditional clause. The right of self-defense is so fundamental that they not only codified it unconditionally, they also told us the reason why.

    3. Jim, your "f'rinstance" is a straw man. Your property rights are absolute. Therefore, you determine who may and may not enter your property. If you say I may not enter, so be it.

      For you to forbid me to bear arms on your property, is one thing, and arguably within your property right, though it may place some burden for my defense on you. And for you to deny me the right to defend myself while on your property is another, one that your property rights most assuredly do not "trump".

      I do not understand your defining rights as "cognitive" or "contextual", though I'm pretty sure I would not accept at least the latter.

      Last, but not least, your second paragraph is logically inconsistent with your first. If there cannot be exceptions, and the right is unconditional, how then is it also contextual?

  3. Yes. But why confuse the twit more than she already is? :) she probably doesn't read here, anyway.

  4. "For you to forbid me to bear arms on your property, is one thing, and arguably within your property right, though it may place some burden for my defense on you." I love that point you make. It is a little thought of truth

  5. Why are 'rights' as outlined in the Constitution/BOR's not absolute? Who said that and what was the original intent? Seems the founders and framers of the Constitution did in fact (IMHO) intend that there are rights granted by God that can not be altered or taken away as a matter of freedom and liberty as the basic foundation of our country.

    1. rights granted by God that can not be altered or taken away as a matter of freedom and liberty as the basic foundation of our country.

      Yes and they are our Natural Rights also.

  6. The right to be armed is not negotiable. With or without a 2nd Amendment I will not negotiate.Why is it that you all continue to argue the point. Arms confer the ability to say NO; and make it stick. Without them you are property. I do not need or desire the cover of a legalistic piece of paper to arm myself and loved ones.
    As a preacher fiend of mine once said; you can be so spiritually, or in this case legally good; that you are of no earthly use.

    1. It is a Natural Right and no more needs to be said.