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The History of the Second Amendment Part 3 – The States vs. The Feds

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  1. Anicius Julianus
    The State vs. the Feds

    April 15th. To borrow a line from Charles Dickens, “It is the best of times and the worst of times.” I got married, just a few short years ago, on that date so it is the best of times. But, like most of us, I too must pay taxes on that very same date so it is also the worst of times!

    To continue with our series looking at the history of the Second Amendment we need to understand that the independent states of the union did not want the federal government to make decisions for them which is why they wrote their own constitutions and more importantly, why they wanted a Bill of Rights.

    Where did the individual states stand prior to the formation of the Bill of Rights on the subject of arms? Before the ratification of the Constitution in 1788 or the Bill of Rights in 1791, states had their own laws regarding self-defense. The following are some excerpts from various state laws regarding the right to keep and bear arms:

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    - “Noe man shall goe or send abroade without a sufficient party well armed” (i)
    - “It is enacted and confirmed that masters of every family shall bring with them to church on Sundays one fixed and serviceable gun and sufficient powder and shott upon penalty of ten pounds of tobacco …”(ii)
    - “An act for the better security of the inhabitants by obliging the white male persons to carry firearms to places of public worship” This act consisted of 44 lines of text detailing “… on Sunday or other times, to any church, or other place of divine worship within the parish where such persons shall reside, shall carry with him a gun, or a pair of pistols, in good order and fit for service, with at least six charges of gun-powder and ball …”(iii)
    - “The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct, preserving always to the people the right of choosing their colonels and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed.” (iv)

    What we see here the desire of individual states for self-defense and protection of individual property also known as public defense. "A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." (v) Here the militia is defined as ‘all men capable’ and the states wanted the right to define who will form and become the militia, bear arms and defend themselves. The states did not want the Federal government to interfere with their right to public defense, thus they all had their own constitutions laying out laws pertinent to how the state viewed those laws. However, they did want the backing of the Federal government’s view of the Second Amendment in order to “confirm that the guarantees of the U.S. Constitution concerning the right to keep and bear arms were always understood to be inclusive of and extended to every ‘able-bodied citizen’”. (vi)

    The idea that the Second Amendment, the Bill of Rights or the Constitution for that matter, was written in a vacuum without input from the states is foreign. Representatives were elected by individual states to attend the Constitutional Convention to supply input and to vote on various matters, particularly that of independence from Britain. States did supply input to the formation of our founding documents. As an aside, those who did attend the Convention or signed their name to the Constitution became subjected to loss of life, family and/or property by the British government for an insurgency. It was a bittersweet situation for the state’s representatives to become elected to a position which put them in line to attend such a historic meeting but at the same time realizing the consequences of attending, not only for themselves but their loved ones also.

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    The Bill of Rights was, is essentially, an amendment to the Constitution which provided for states greater constitutional protection for individual liberties. In other words, it limits the power of the Federal government thus allowing states certain basic rights applicable to the state itself and it reinforces the inalienable rights spelled out in our Constitution.

    Not unlike today, there was division among attendees to the Convention which made for interesting politics. Several representatives to the Convention would not sign the Constitution unless their input was heard regarding states’ rights. As Elbridge Gerry wrote, “The ratification of the Constitution in several States would never have taken place had they not been assured that their objection would have been duly attended to by Congress. And I believe many members of these conventions would never have voted for it if they had not been persuaded that Congress would notice them with that candor and attention which their importance requires.” (vii)

    So, the Bill of Rights was thus formed, not solely by James Madison, but with significant input by the states and their representatives and would not be what we have today if those representatives had not carried with them the deep and abiding history of the individual state’s belief in ‘a well-armed militia.’

    “But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of [Federal] Government, by excepting out of the grant of power those cases in which the [Federal] Government ought not to act, or to act only in a particular mode.” (viii)

    “The people of many states have thought it necessary to raise barriers against power and in all forms and departments of [Federal] Government, and I am inclined to believe, if once bills of rights are established in all the states as well as the Federal Constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.” (ix)

    In the preceding two paragraphs James Madison admits the necessity of a Bill of Rights both at the Federal and State level and that having such a bill will have a beneficial effect nationally. He also admits to limiting the powers of the government and allowing states to act as they see fit.

    We should all be thankful for the vision of our Founding Fathers who listened to the state representatives, carefully thought out their approach to the separation of powers between the two bodies and formulated our Bill of Rights.

    As April 15th approaches one would suppose that having to pay taxes to one form of government would be preferred to paying to two. Benjamin Franklin understood this, as well as human nature when he said,

    Friends and neighbors complain that taxes are indeed very heavy, and if those laid on by the government were the only ones we had to pay, we might the more easily discharge them; but we have many others, and much more grievous to some of us. We are taxed twice as much by our idleness, three times as much by our pride, and four times as much by our folly."

    Let us only be taxed by our government, not by the lack of our own constitution.

    FootNotes
    i - Laws of Virginia February 1631 – 32 - Act XLVI
    ii - Laws of Virginia March 1642-3 – ACT XLI
    iii - Digest of the Laws of the State of Georgia [ from 1775 to 1800 ]
    iv – Constitution of Pennsylvania – September 18, 1776
    v - Richard Henry Lee, Additional Letters from the Federal Farmer [1788]
    vi – The Second Amendment – David Barton pg. 35
    vii – Debates and Proceedings in the Congress of the United States, 1789
    viii – The Debates and Proceedings in the Congress of the United States, First Congress, First Session, Volume 1, Pg.: 453; Mr. Madison
    ix - The Debates and Proceedings in the Congress of the United States, First Congress, First Session, Volume 1, Pg.: 454; Mr. Madison

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