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History of the Second Amendment – Part 4 – States Rights

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  1. Anicius Julianus
    State’s Rights

    In this brief but last article on the history of the Second Amendment, we will be looking at State’s view of that amendment and how it affects us.

    We saw in the previous article, The State vs. the Feds, that various states had laws governing the right to self-defense and the defense of the state in place prior to the ratification of the Constitution or the Bill of Rights. State governments, as we have seen, are another source of affirmation of self-defense whose idea has been around for a long time and will continue until the end of history. For example, “Noe man shall goe or send abroade without a sufficient party well armed”, was a law enacted in the state of Virginia in 1632, 160 years prior to the Bill of Rights.

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    State governments also needed a constitution to govern the people of the state and to secure the enforcement of 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”. To digress for a moment, we must ask the question so aptly stated by Alexander Hamilton, “For why declare that things shall not be done, which there is no power to do?” Therefore, I ask, “Does this allow a state to ignore, modify or change the meaning of the Second Amendment as they see fit thus ignoring that which is stated in the Bill of Rights?”

    Nevertheless, states constructed their own constitutions and, as our focus is on the right to bear arms, we will look at a few examples then and now of various state constitutions and what they have to say about that topic.

    Constitution of Georgia; February 5, 1777

    ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies.

    Constitution of the State of Georgia; January 2013


    ARTICLE I. BILL OF RIGHTS, SECTION I. RIGHTS OF PERSONS of the State of Georgia currently states, “Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but [emphasis added] the General Assembly shall have power to prescribe the manner in which arms may be borne.”

    [ You just have to love conjunctions! ]

    Constitution of Pennsylvania - September 28, 1776

    VIII. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.

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    From 1776 until 1901 we have 35 states who’s constitutions expressly stated the need for its citizens to keep and bear arms, the right of the people to protect their property and those that do have arms “shall not be questioned” as to why they have them.

    Parenthetically we have U.S. Code which currently states,

    “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

    (b)The classes of the militia are—

    (1) the organized militia, which consists of the National Guard and the Naval Militia; and

    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.” (i)

    Therefore, if you are not a member of the National Guard or the Naval Militia you are a member of the ‘unorganized militia’ so long as you are between the ages of 17 and 45. Those of us who are outside of that age range would technically not be a member but in times of duress I would suspect there would be a general call to arms regardless of age.

    To wrap up let’s revisit the wording of the Tenth Amendment and ask a question: “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”.

    Does this mean that state laws which existed before the Bill of Rights was ratified are nullified? So long as they are not prohibited by the Constitution, they are valid. Thus, laws of self-defense at the state level are fully acceptable and lawful for the people of the state.

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    So now we have come full circle – Citizens, recognizing their God-given inalienable rights to protection of self and property enact state laws based upon those rights, voice them to the Founding Fathers for protection against the Federal government thru the Bill of Rights, which becomes ratified in 1791, thus fulfilling their dream of freedom thru personal and property rights.

    Legal Information Institute; 10 U.S. Code § 246 - Militia: composition and classe

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