Editor’s Note: The following was posted in the Reply section of a recent column written by Kettle Moraine Publication’s contributing author, Justin O. Smith for the Federal Observer. We warrant that the author’s comments were well worth a direct posting of his entire reply. Thank you William Heino Sr.. (However, it has also been rumored that the author may in-fact be deceased.) ~ Ed.
Supreme Court Justice Amy Coney Barrett
In some 225 years neither law professors, academic scholars, teachers, students, lawyers, or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of the Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.
I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “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.”
Militia, a body of citizens organized for military service.
If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)
The 4th Amendment reminds us, “The right of the people to be secure in their persons….”
The Article of Confederation lists eleven (11) references to “person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.
It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”
The President was elected on 13 of these references. Of which 11 are Amendments, conditioning a “person,” unlike the Second Amendment, to the role of the President of the United States.
Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?
The reason is obvious ~ the 2nd Amendment is about a “militia”.
Justice Amy Coney Barrett’s dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person’s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero references to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment… leaving Supreme Court Justice Barrett’s judgment in question.
In the entire U.S. Constitution “militia” is mentioned 5 times. In these references, there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.
Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..
And interestingly, the word “shall” appears in the Second Amendment. “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”
“[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;
The condition “Infringe” has put a stop as to any thoughts counter regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.” Article 1. All legislative Powers herein granted shall be vested in the Congress of the United States, …”
Clarifying “..the right of the people to keep and bear arms…”
People. Human beings making up a group or assembly or linked by a common interest.
Finally, another reason and need for…. “A well regulated militia, …” exactly, because we fight among ourselves.
In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.
William Heino Sr.
April 14, 2022
Mr William Heino, SR:
The operative phrase in the Second Amendment is “the right of the people to keep and bear arms shall not be infringed”. The prefatory phrase about militias is an ablative absolute clause giving context for the main clause, and it is illuminating in that function. The Second Amendment does not say it protects the right of state militias to bear arms.
No one thinks that when the First Amendment speaks about the right of the people to petition the government that it means only to protect the rights of lobbyists for state governments. It means individuals. What the Second Amendment is saying is you can’t disarm the people under the pretext of regulating the militia.
The Founding Fathers had a strong fear of standing armies in peacetime but also knew from the Revolutionary War that militias alone would not suffice to defend the nation. A militia was formed by temporarily mobilizing citizens; an army, especially as they were known in Europe then, was typically made of career soldiers. An army was necessary for defending the country, the Founders concluded.
Meanwhile, anti-federalists had an abiding suspicion of ruling tyranny such as they saw in Europe, where citizens could not own guns, and therefore insisted that Americans not be disarmed. The Second Amendment’s purpose is to give citizens a way to defend themselves, not only from potential tyrants but also from threats from any violent criminals that the government, i.e. local police departments, leaves unchecked and free to roam, just as we see today under many Democrat led state governments and this Biden regime, that is doing everything under the sun to overwhelm and collapse the system, in order to usher in an authoritarian socialist regime.
The Biden regime stands as a perfect example of the reason the Founders were so insistent on the inclusion of the Second Amendment, and many of the representatives at the Constitutional Convention would not sign the Constitution until it had been added to The Bill Of Rights.
So cavalier an attitude as You present towards a right that acts to restrict government’s intrusions and tramplings of all our other rights, if adopted by the masses en masse and in the largest numbers, would most assuredly see freedom and liberty disappear for many long years, in America, ushering in the “thousand years of darkness” that Ronald Reagan often warned us to stand against in every endeavor concerning government and its expansion.
Give a wink and a nod when some government agent locks us down again, or you and others are marched off to a new American Gulag, for any reason handed down by some new tyrant, because you relinquished your individual God-given right — seen in Nature and recognized under Natural Law too — to defend yourself and others. And I’ll be standing on a hill overlooking the entire sorry episode, along with other Liberty-minded Americans, with rifle in hand in preparation to fight however hard and long, in order to remain free and to ensure that America’s Children and Their Children May Live Free far into the future.
~ Justin O Smith