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.
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Amendment XXI, Section 1
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XXI, Lawrence J. Spiwak 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Article V, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment XXI, Constitutional Amendment XXI, Lawrence J. Spiwak, The Constitution of the United States of America
Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies
Amendment XXI, Section 1:
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Ending Prohibition: Are there Lessons to be Learned?
In this essay, my intention is not to focus on the fact that the 21st Amendment repealed Prohibition, but to explore briefly what lessons we can learn from the experience.
To quickly summarize the facts, the 18th Amendment was enacted in 1919, which prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” However, as detailed in the excellent Ken Burns documentary, Mark Thornton’s seminal book entitled The Economics of Prohibition, and elsewhere, despite its altruistic intentions, Prohibition didn’t decrease alcohol abuse but increased it; Prohibition didn’t eliminate crime but created it; and Prohibition certainly didn’t increase prosperity but robbed the treasury of taxes. As a result, Prohibition was repealed in 1933 by the 21st Amendment. (Significantly, because of fear of grassroots political pressure from the temperance movement, the 21st Amendment is, thus far in American history, the only constitutional amendment ratified by state conventions rather than by the state legislatures.)
Given this debacle, I think there are at least a few lessons I think we can learn:
To begin, Prohibition provides an excellent example—albeit a bit dysfunctional one—of the amendment process spelled out by Article 5 at work, in that we as a society were able to self-correct a policy gone horribly wrong. Indeed, although I’m sure Prohibition was enacted with the best of intentions, the Prohibition experience nonetheless epitomizes the “law of unintended consequences.”
That said, here is an interesting question to ponder: let us assume that rather than elevate Prohibition to the full fledged level of a Constitutional Amendment, we only went so far as to pass a law that prohibited the “manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States.” Would it have been easier for us to self-correct Prohibition via either a new law through the legislative process or a Constitutional challenge in the courts? Probably. As a result, Prohibition also teaches us to exercise some degree of caution and careful thought before we seek to undertake another effort to amend the Constitution.
Yet, but perhaps most importantly, Prohibition forces us to recognize the old maxim that if we are to be a society of laws, then the public must believe in the legitimacy of the law. Indeed, in undertaking research for this essay, I came across a telling quote by wealthy industrialist John D. Rockefeller, Jr. from 1932, whereby he wrote:
“When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.”
So what is it about Prohibition that caused many Americans literally to lose faith with their own Constitution? Certainly, we have a lot of laws that constrain personal behavior (e.g., prohibitions against murder; prohibitions against fraud and theft; prohibitions against treason), but everybody generally accepts these constraints as necessary to ensure a functioning society. What was it about Prohibition that, to use Mr. Rockefeller’s words, “created a vast army of lawbreakers…”?
Although I’m sure different people can provide different answers to this question, I come out with the view that Prohibition failed because Americans simply came to realize that the government had no business sticking its nose into their personal lives and interfering with their proverbial “pursuit of happiness.” Thus, because many Americans viewed the law as violating their basic civil liberties, they saw no reason to comply with the law.
To illustrate my point, let’s take the following extreme hypothetical example. As many readers of Constituting America are well aware, American’s cherish their Second Amendment right to bear arms. Now, let’s assume that a huge “firearms temperance” movement sweeps the nation and, as a result, a new Constitutional amendment is enacted that repeals the Second Amendment and prohibits the “manufacture, sale, or transportation of firearms within, the importation thereof into, or the exportation thereof from the United States.” In such a hypothetical case, while law abiding citizens could no longer own guns to hunt or to protect their families, do we honestly think that gun-related crimes would disappear or that a vibrant black market for firearms would not instantly blossom? Of course not. In such a case, I have no doubt that after a few years of many unintended consequences, there would be a forceful movement to repeal my hypothetical amendment too.
In sum, Prohibition teaches us that while it is possible to correct bad policy decisions, any time we seek to elevate an issue to the level of a Constitutional Amendment we should do so with both great discipline and respect for individual liberty. If we do not learn the lessons from Prohibition, however, then we are doomed to repeat them in the future.
Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC. He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia. The views expressed in this article do not represent the views of the Phoenix Center or its staff.
May 25, 2012
Essay #70
Amendment XIV – The 14th Amendment’s Impact on the Constitution
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, Eric Wise 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VIII, Constitutional Amendment VIII, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Constitutional Amendment XV, Constitutional Amendment XV, Declaration of Independence, Dred Scott Decision, Eric Wise
Guest Essayist: J. Eric Wise, a partner in the law firm of Gibson, Dunn & Crutcher LLP
Amendment XIV:
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
After the Civil War came the Reconstruction Amendments. Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence. The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.” The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery. While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.
The Constitution of 1789 contained a few key limits on state action. No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war. Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen. Every state was guaranteed a Republican form of government.
States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution. The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples. This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government). The 14th Amendment fundamentally changed this.
Section 1 of the 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship. The privileges and immunities clause placed alien and resident persons in a state on equal footing. The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state. Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.
As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees. That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.
Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs. Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937). Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups. Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”
Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions. For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives. And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states. These last two cases raise an important question. Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?
J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance
May 6, 2012
Essay #56
Amendment XIV Due Process Protection
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment XIV, William Morrisey, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment XIII, Constitutional Amendment XIII, Constitutional Amendment XIV, Constitutional Amendment XIV, Declaration of Independence, Declaration of Independence, The Constitution of the United States of America, William Morrisey PhD
Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College
Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What Is “Due Process of Law”?
Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?
For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?
Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.
This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.
But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?
The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.
But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.
This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.
Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”
Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.
Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”
This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.
By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.
April 27, 2012
Essay #50
Amendment III: Freedom From Quartering Soldiers in Peacetime
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment III, William Morrisey, Ph.D. 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment III, Constitutional Amendment III, Constitutional Amendment IV, Constitutional Amendment IV, The Constitution of the United States of America, William Morrisey PhD
Guest Essayist: William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College
Amendment III
“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”
Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.” So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.
During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes. They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders. And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.
After the war, this practice (as our saying now goes) got old in a hurry. By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?” Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.” By occupying the property of private landowners, the British Army acted as if a law unto itself.
Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes. Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.” Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.
The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight. After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments. One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia. Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.” With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.
Notice the important caveat. Times of extreme emergency may require the risk and burden of quartering troops in private homes. Accordingly, Congress provided that the practice might be renewed by legislative act. The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them. Then and only then would a Congress or a state legislature dare to enact such a measure.
Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense. It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained. It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures. The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.
March 7, 2012
Essay #13
Amendment II: The Right of the People to Keep & Bear Arms, Shall Not Be Infringed
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment II, John Lott, Ph.D. 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, John Lott PhD
Guest Essayist: Dr. John Lott, author of More Guns, Less Crime (University of Chicago Press, third edition, 2010).
“The right of the people to keep and bear Arms, shall not be infringed”
To an overwhelming percentage of Americans, the constitutional question over DC’s and Chicago’s gun bans seemed simple enough. The plain meaning of the amendment was clear, and the Supreme Court agreed. In 2008 and 2010, Supreme Court decisions struck down gun bans and gunlock laws and decided that Americans have a right to self-defense. These were contested decisions, both being decided by close 5 to 4 votes. The four dissenting liberals claimed that there exists no individual right to “self-defense,” and even if such a right existed, it could be overridden by the public interest of reducing gun crimes and suicides.
In his 2008 dissent, Justice Stephen Breyer claimed that the “thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers . . . .” is unrelated to the fears that Americans face today from crime in urban areas. He claims that the proposition that “householders’ possession of loaded handguns help to frighten away intruders” as “a question without a directly provable answer.” And that “none of the studies can show that [handgun bans are] not worthwhile.”
But a simple word count shows how Breyer’s fear over letting law-abiding Americans own guns fills his dissent. Just the words “crime,” “criminal,” “criminologist,” “death,” “homicide,” “murder,” “life-threatening,” “injury,” “rape,” “robbery,” “assault,” “safety,” and “victim” were used a total of 163 times in 44 pages. The terms “accidents” and “suicide” by themselves were mentioned an additional 13 times each. While other words could be included, these words alone averaged 4.3 per page of his dissent.
Many others shared Breyer’s concerns that murder and violent crime rates would soar after the Supreme Court struck down the Washington, D.C. and Chicago gun control laws. Politicians predicted disaster. “More handguns in the District of Columbia will only lead to more handgun violence,” Washington’s Mayor Adrian Fenty warned the day the court made its decision. Chicago’s Mayor Daley predicted that we would “go back to the Old West, you have a gun and I have a gun and we’ll settle it in the streets . . . .” The New York Times even editorialized this month about “the Supreme Court’s “unwise” decision that there is a right for people “to keep guns in the home.”
Yet, Armageddon never happened. Indeed, in the year after the 2008 Heller decision, the murder rate fell two-and-a-half times faster in DC than in the rest of the country. It also fell more than three as fast as in other cities that are close to DC’s size.
And murders in DC have continued to fall. If you compare the first six months of this year to the first six months of 2008, the same time immediately preceding the Supreme Court’s late June Heller decision, murders have now fallen by 34%.
To top it off, gun crimes fell more than non-gun crimes. Robberies with guns fell by 25%, while robberies without guns have fallen by 8%. Assaults with guns fell by 37%, while assaults without guns fell by 12%. Just as with right-to-carry laws, when law-abiding citizens have guns some criminals stop carrying theirs.
Similarly, the experience with crime data for Chicago shows that, as in DC, murder and gun crime rates didn’t rise after the bans were eliminated — they plummeted. They have fallen much more than the national crime rate. On this topic, the national media has remained completely silent.
In the first six months of last year, there were 14% fewer murders in Chicago compared to the first six months of last year – back when owning handguns was illegal. It was the largest drop in Chicago’s murder rate since the handgun ban went into effect in 1982. Meanwhile, the other four most populous cities experienced a total drop at the same time of only 6 percent.
The benefit could have been even greater. Getting a handgun permit in DC and Chicago is an expensive and difficult process, meaning only the relatively wealthy go through it. Only a few thousand people had handguns registered in Chicago by the middle of last year. That limits the benefits from the Supreme Court decisions since it is the poor who are the most likely victims of crime and who benefit the most from being able to protect themselves.
For DC, the biggest change was the Supreme Court striking down the law making it illegal to possess a loaded gun. Over 70,000 people have permits for long guns that they can now legally used to protect themselves.
Lower crime rates in Chicago and DC by themselves don’t prove that gun control increases murders, even when combined with the quite familiar story of how their murder rates soared and stayed high after the gun bans were imposed.
But these aren’t isolated examples. Around the world, whenever guns are banned, murder rates rise. Gun control advocates explained the huge increases in murder and violent crime rates Chicago and DC by saying that those bans weren’t fair tests unless the entire country adopted a ban. Even island nations, such as Ireland and the UK — with no neighbors to blame — have seen increases in murder rates. The same horror stories about blood in the streets have surrounded the debate over concealed handguns. Some said it was necessary to ban guns in public places. The horror stories never came true and the data is now so obvious that as of November, only one state, Illinois, will still completely ban law-abiding citizens from carrying concealed handguns. Forty-one states will have either permissive right-to-carry laws or no longer even require a permit.
The regulations that still exist in Chicago and DC primarily disarm the most likely victims of crime. Hopefully, even the poor in these areas will soon also have more of an opportunity to defend themselves also.
Dr. John Lott is the co-author with Grover Norquist of the just released book: Debacle: Obama’s War on Jobs and Growth and What We Can Do Now to Regain Our Future. He has held research positions at academic institutions including the University of Chicago, Yale University, the Wharton School at the University of Pennsylvania, Stanford, Rice, and the University of Maryland, College Park and at the American Enterprise Institute. Lott was the chief economist at the United States Sentencing Commission during 1988 and 1989. He has published over 100 articles in peer-reviewed academic journals related to his research areas, and has authored seven books, including “More Guns, Less Crime”, “The Bias Against Guns” and “Freedomnomics.” He is a contributor and columnist for Fox News. Lott earned his Ph.D. in economics from UCLA in 1984.
Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment II, Joerg W. Knipprath 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 25, Federalist No. 84, Joerg W. Knipprath, The Constitution of the United States of America, The Northwest Ordinance
Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School
Amendment II:
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.
Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State
When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.
Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.
There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:
To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….
Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:
The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”
The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.
To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.
Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”
Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.
Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.
If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
March 5, 2012
Essay #11
The Bill of Rights, Purpose and Benefits
Analyzing the Amendments in 90 Days 2012 Project, Richard Brookhiser 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VIII, Constitutional Amendment VIII, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment X, Constitutional Amendment X, Constitutional Amendment XXVII, Constitutional Amendment XXVII, Federalist No. 84, Richard Brookhiser, The Constitution of the United States of America
Guest Essayist: Richard Brookhiser, Author, James Madison
http://vimeo.com/37225503
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”
In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.
So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.
There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).
But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.
Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.
The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.
Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.
February 21, 2012 – Essay #2
Amendment IX of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment vIX, Steven H. Aden 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment III, Constitutional Amendment III, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Constitutional Amendment VIII, Constitutional Amendment VIII, Constitutional Amendment vIX, Constitutional Amendment vIX, Constitutional Amendment XIII, Constitutional Amendment XIII, Steven H. Aden
Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund
Amendment IX
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment. And that’s just what James Madison and the Framers intended.
The Ninth Amendment is that rare creature in American politics, a success story conceived in humility. The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others. Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish. Instead, they added a caution, by way of an afterthought. The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.
The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers. The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned. Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision – https://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?” But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance. The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct. On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.
That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion. For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920). Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment. Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract. For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.
Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments. Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.
Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .
Amendment VI of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment VI, Marc S. Lampkin 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment I, Constitutional Amendment I, Constitutional Amendment II, Constitutional Amendment II, Constitutional Amendment III, Constitutional Amendment III, Constitutional Amendment IV, Constitutional Amendment IV, Constitutional Amendment V, Constitutional Amendment V, Constitutional Amendment VI, Constitutional Amendment VI, Constitutional Amendment VII, Constitutional Amendment VII, Constitutional Amendment VIII, Constitutional Amendment VIII, Marc S. Lampkin
Guest Essayist: Marc. S. Lampkin, a Vice President at Quinn Gillespie
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly. It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.
By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media. Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.
There are seven elements of the 6th Amendment:
Speedy Trial: As recognized by the Supreme Court this provision has three obvious benefits to the accused
- To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
- To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
- To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.
Public Trial: Under its terms the trial must be open to the public and accessible by the media. Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.
Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision. Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury. No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice. They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.
Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual. The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge. Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.
In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes. They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.
Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system. A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”
Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court. If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person. Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.
Counsel: Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case. While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice. As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government. At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense. In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice. Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.
The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government. The founders were quite familiar with the list of abuses by the English monarch. It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.
Marc S. Lampkin is a Vice President at Quinn Gillespie
Amendment II of the United States Constitution
Analyzing the Constitution in 90 Days 2011 Project, Constitution Amendment II, David B. Kopel 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Article I Section 08 Clause 14-16, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel
Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law
Amendment II
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.
Like most of the Bill of Rights, the Second Amendment was part of a conciliatory program by the Federalists, as promised by James Madison at the Virginia ratifying convention. For the most part, the Bill of Rights consisted of assurances that the new federal government could not do things which the Federalists never wanted to do anyway, and which the Federalists believed were not within the powers which had been granted to the new government.
For example, the Federalists had no wish to establish a national religion, and they believed that Congress’s enumerated powers (e.g., to establish post offices, to regulate interstate commerce) could not possibly be construed so as to give Congress the power to establish a religion. Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.
The Second Amendment was of a similar character. Based on knowledge of history from ancient times to the present, the Federalists and the Anti-Federalists agreed that disarmament was a direct path to slavery. Indeed, the heavy-handed English government of King George III had precipitated the American Revolution through an aggressive gun control program in 1774-76: embargoing the import of guns and gunpowder by the American colonies, confiscating the guns and gunpowder which some towns stored in central repositories (the repositories kept guns for militiamen who could not afford their own gun, and provided merchants a place to keep reserve quantities of gunpowder in a fireproof building), putting Boston under military occupation and confiscating the firearms of the Bostonians, using the military to conduct house-to-house searches for firearms at Lexington and Concord, and then naval bombardment and destruction of coastal New England towns which refused to surrender all their arms.
Accordingly, the Second Amendment’s assurance that the federal government could never disarm the people was uncontroversial.
Where Madison had refused to budge was on the subject of federal powers over the militia. The original Constitution, in clauses 15-16 of Article I, section 8, had given Congress broad authority to summon the militia into federal service, and to provide for the organization, arming, and disciplining of the militia. At the state ratifying conventions, Anti-Federalists had strongly objected to these new federal powers. But Madison refused to limit federal militia powers, just as he refused all other proposals to constrict the federal powers granted by the new Constitution.
When U.S. Representative James Madison introduced his proposed Bill of Rights into the first session of the United States House of Representatives in 1789, he proposed that the right to arms language be inserted into Article I, Section 9, after Clause 3. Clauses 2 and 3 protect individuals against suspension of the writ of habeas corpus, bills of attainder, and ex post facto laws. Madison also suggested that what were to become the First, Third, Fourth, Eighth, and Ninth Amendments, portions of the Fifth Amendment (double jeopardy, self-incrimination, due process, just compensation), and portions of the Sixth Amendment (speedy public trial, right to confront witnesses, right to be informed of charges, right to favorable witnesses, right to counsel) also be inserted there.
Madison proposed that the remainder of the Fifth (grand jury), Sixth (jury trial, in the form of a declaration that “trial by jury as one of the best securities to the rights of the people, ought to remain inviolate”), and the Seventh Amendment (civil jury trial) be inserted into Article III, which deals with the judiciary. He recommended that what would become the Tenth Amendment be inserted as a new article between Articles VI and VII. His proposed limitation on congressional pay raises was to be inserted into Article I, Section 6, which governs congressional pay. (This was eventually ratified as the Twenty-seventh Amendment in 1992.)
If Madison had seen the proposed Second Amendment as a limitation on federal militia powers, then he would have placed the Amendment in the part of the Constitution which defines federal militia powers. (Article I, § 8, clauses 15-16.) Instead, he placed the proposed language in the portion of the original Constitution which guaranteed individual rights.
However, the House objected that interpolating changes into the original Constitution would imply that the original Constitution had been defective. So Madison’s changes were eventually appended to the Constitution, as amendments following the main text.
For the speech introducing the Bill of Rights into the House of Representatives, Madison’s notes contain the following: “They relate first to private rights—fallacy on both sides—espec as to English Decln. Of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience…attaineders—arms to protest[an]ts.” James Madison, “Notes for Speech in Congress Supporting Amendments,” June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979) (bracketed letters not in original).
The English Declaration of Rights, enacted by Parliament in 1689, had declared that “The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law.”
So Madison believed that the English Declaration of Rights was defective because it was a mere act of Parliament, and thus could be over-ridden by a future Parliament. Further, the English Declaration of Rights did not go far enough, in part because its arms guarantee protected only Protestants (98% of the English population at the time).
As introduced by Madison, the Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
After approval by the House, the Second Amendment was considered by the Senate. The Senate (1) removed the religiously scrupulous clause and the phrase “composed of the body of the people,” (2) replaced “the best” with “necessary to the,” and (3) rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.” 1 Journal of the First Session of the Senate 71, 77 (1820).
The rejection of the “common defence” language made it clear that the Second Amendment right to arms was not solely for militia service.
The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18th and 19th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.
For example, Rhode Island’s 1842 Constitution declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” Eugene Volokh, “The Commonplace Second Amendment,” 73 NYU Law Review 793 (1998).
The right which is guaranteed in the operative clause is not limited by the purpose clause. In Rhode Island, the purpose clause refers to “the press,” but the operative clause protects the speech rights of “any person,” not just journalists. Likewise, the Second Amendment right does not belong only to the militia; it belongs to “the People,” just as the First Amendment right to assemble and the Fourth Amendment right to freedom from unreasonable searches and seizures, are rights of “the People,” and therefore rights belonging to all individual Americans.
Tench Coxe, a political ally of Madison who would later serve in Madison’s sub-cabinet, penned the most comprehensive section-by-section exposition on the Bill of Rights published during its ratification period. Regarding Madison’s proposed right to arms amendment, Coxe wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2.
After Coxe, the best evidence of the original public meaning of the Second Amendment comes from the most influential and widely used legal treatise of the early Republic, the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by the Virginia jurist St. George Tucker (1752-1827). Tucker was a militia colonel during the Revolutionary War, a Virginia Court of Appeals judge, a federal district judge, and professor of law at the College of William & Mary. Regarding the Second Amendment, Tucker’s 1803 treatise was essentially verbatim from his 1791-92 lecture notes at the College of William & Mary, almost immediately after the Second Amendment had been ratified.
Tucker’s Blackstone was not merely a reproduction of the famous English text. It contained numerous annotations and other material suggesting that the English legal tradition had undergone development in its transmission across the Atlantic, generally in the direction of greater individual liberty. Tucker’s treatment of Blackstone’s discussion of the right to arms was typical. According to Tucker: “The right of the people to keep and bear arms shall not be infringed. Amendments to [Constitution], and this without any qualification as to their condition or degree, as is the case in the British government.” St. George Tucker, 1 Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia 143-44 (1803) (reprinted 1996 by The Lawbook Exchange).
Tucker’s Blackstone also included a lengthy appendix on the new American constitution. This appendix was the first scholarly treatise on American constitutional law and has been frequently relied upon by the United States Supreme Court and scholars. Tucker’s primary treatment of the Second Amendment appeared in the appendix’s discussion of the Bill of Rights:
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.
. . .This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
Appendix to Vol. 1, Part D, p. 300.
Tucker’s appendix also mentioned the right to arms in the context of Congressional power over the militia. Noting that the Constitution gives Congress the power of organizing, arming, and disciplining the militia, while reserving to the states the power to train the militia and appoint its officers, Tucker asked whether the states could act to arm and organize the militia if Congress did not. He argued that the language of the Second Amendment supported the states’ claim to concurrent authority over the militia:
The objects of [the Militia Clauses in Article I] of the constitution, . . . were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining it’s own militia, whenever congress should neglect to provide for the same.” . . . [A]ll room for doubt, or uneasiness upon the subject, seems to be completely removed, by the [second] article of amendments to the constitution, since ratified, viz. ‘That a militia [sic] being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed.’ To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.
Id., pp. 272-73.
Tucker’s treatise was studded with other references to the right to arms. For example, Tucker contended that Congress’s power to enact statutes that are “necessary and proper” for carrying into effect its other enumerated powers, U.S. Const. art. I, sec. 10, cl. 8, did not include the power to make laws that violated important individual liberties. Such laws could not be deemed “necessary and proper” in the constitutional sense, argued Tucker; therefore, they were invalid and could be struck down by a federal court. Tucker chose as an illustration a hypothetical law prohibiting the bearing of arms:
If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of those means.
Id., p. 289.
Similarly, Tucker observed that the English law of treason applied a rebuttable presumption that a gathering of men was motivated by treason and insurrection, if weapons were present at the gathering. Tucker, however, was skeptical that the simple fact of being armed “ought … of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself.” Vol. 5 Appendix, at 9, note B. He added: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Id. For more on Tucker and the Second Amendment, see David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” 103 Northwestern University Law Review Colloquy 1527 (2009); Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing the True Palladium of Liberty,” 3 Tennessee Journal of Law & Policy 114 (2007).
From Madison, Coxe, and Tucker to the present, the large majority of Americans have always understood the Second Amendment as guaranteeing a right to own and carry guns for all legitimate purposes.
This view was re-affirmed after the Civil War. Specifically invoking the “the constitutional right to bear arms,” Congress enacted the Second Freedmen’s Bureau Bill to stop the South from interfering with gun ownership and carrying by the former slaves. Similarly, the Fourteenth Amendment was passed by Congress, and ratified by the states, for, among other things, preventing the Southern states from interfering with the Second Amendment rights of the Freedmen to keep and bear arms to defend themselves against the Ku Klux Klan and similar racial terrorists. , Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Oakland: Independent Institute, 2010).
The U.S. Supreme Court relied on this original meaning in the 2010 case McDonald v. Chicago, holding that the Fourteenth Amendment prohibits state and local governments from infringing Second Amendment rights.
During part of the 20th century, a theory was created that the Second Amendment was not an individual right, but was instead a “state’s right” or a “collective right.” Although lacking in historical support, these anti-individual theories were for a time popular among some elites. However, in District of Columbia v. Heller (2008), all nine Justices of the Supreme Court agreed that non-individual interpretations of the Second Amendment were supported neither by history nor by the Court’s precedents.
The Heller Court split 5-4 on whether the individual right was only for militia purposes (the four dissenters led by Justice Stevens) or was for all legitimate purposes (the five-Justice majority led by Justice Scalia). The majority result had strong support not only in the original meaning of the Second Amendment, but also in more than two centuries of history and evolving tradition of the Second Amendment, in which the American people had repeatedly affirmed the right to own and carry firearms for personal defense, hunting, and all other legitimate purposes. David B. Kopel, “The Right to Arms in the Living Constitution,” 2010 Cardozo Law Review de Novo 99.
David B. Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado. He is also adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law; and an Associate Policy Analyst at the Cato Institute, in Washington, D.C. He is the author of 12 books and over 80 scholarly articles, many of them on firearms law and policy. He is co-author of the first law school textbook on the subject, Firearms Regulation and the Second Amendment, forthcoming from Aspen Publishers.
Federalist No. 46 – The Influence of the State and Federal Governments Compared, From the New York Packet (Madison)
David B. Kopel, Federalist Paper 46, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Constitutional Amendment II, Constitutional Amendment II, David B. Kopel, Federalist No. 46
Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law
Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.
Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.
Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.
The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.
Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees. This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.
Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”
But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.
Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”
The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.
Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.
Absolutely true, to this very day.
Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.
Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.
This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.
But one major change upset the Madisonian balance. In the 1936 case United States v. Butler, the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.
The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.
So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.
What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.
But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.
Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.
Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:
To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.
In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.
Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.
Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.
Wednesday, June 30th, 2010
David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org
Federalist No. 78 & Federalist No. 79 – Janine Turner
Federalist Paper 78, Federalist Paper 79, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 78, Federalist No. 78, Federalist No. 79, Federalist No. 79Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.
Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.
As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.
One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.
Alexander Hamilton explains the dangers:
“The judiciary is beyond comparison the weakest of the three departments of power [1]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
- Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.
2. We Americans have every thing to fear from the Supreme Court’s union with the other two branches of government. Publius wrote the warning in this Federalist Paper 78.
“And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
Publius further implores the warning:
“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”
“The manifest tenor of the constitution.”
We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.
And we will make sure that our government does so too.
Our power is in our knowledge, our voice and our vote.
Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,
“Manifest tenor of the constitution.”
God Bless,
Janine Turner
Monday, August 16th, 2010
Federalist Paper No. 78 & 79 – Janine Turner
Federalist Paper 78, Federalist Paper 79, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment II, Constitutional Amendment II, Federalist No. 78, Federalist No. 78, Federalist No. 79, Federalist No. 79Howdy from Arizona! We are Constituting America across the great states of America via our Constituting America RV in celebration of our winners of our We the People 9.17 Contest. We are filming a documentary and a reality television show! Check out our winners and their works on our site. They are going to be unveiled as we travel from state to state.
Arizona is a rather appropriate place to be during the discussion of Federalist Papers 78 & 79 because it is almost certain that the new immigration lawsuit that the United States government filed against the state of Arizona will end up in the Supreme Court.
As I read Federalist Papers 78 & 79, I am intrigued by Alexander Hamilton’s following statement regarding the judicial branch of the United States government.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
If this is the requisite then how is it that the Supreme Court recently upheld the fundamental right to bear arms in Chicago, a basic right for all Americans stipulated in the 2nd Amendment of the United States Constitution, by only ONE vote. This is truly astonishing.
One of the primary reasons that the Supreme Court exists is to make sure that the laws that are legislated and executed by the other two branches of the government are constitutional. Thus, how is it that upholding the 2nd Amendment could ever be in question? No matter what lofty interpretation the suit in Chicago may have received by the four Supreme Court dissenters, it is flawed by their blatant lack of respect for their constitutional restraints.
“A constitution is in fact, and must be, regarded by the judges as a fundamental law.”
This begs the question: is the Supreme Court, and other courts across America, overstepping their Constitutional bounds and legislating from the bench? This was never the intention of our founding fathers and they do not have this right in the Constitution.
Alexander Hamilton explains the dangers:
“The judiciary is beyond comparison the weakest of the three departments of power [1]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
- Is our judiciary the weakest of the three departments of power? If it is not, then the general liberty of the people are endangered by the Supreme Court and other courts across America. Is this not evidenced by the Supreme Court’s recent reluctance to uphold the basic fundamental right to bear arms? By one vote, the people of Chicago almost lost this right.
2. We Americans have every thing to fear from the Supreme Court’s union with the other two branches of government. Publius wrote the warning in this Federalist Paper 78.
“And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;”
Publius further implores the warning:
“The complete independence of the courts of justice is peculiarly essential in a limited constitution…whose duty it is to declare all acts contrary to the manifest tenor of the constitution void.”
“The manifest tenor of the constitution.”
We, as American’s, must hear the Constitution’s music. We must understand the melody and heed the conductor, which is the Constitution. If we have this song in our hearts we will protect and defend its majesty.
And we will make sure that our government does so too.
Our power is in our knowledge, our voice and our vote.
Please make sure that your families, friends and children know the song, sing the song, and rise to the swell of the calling of the music. We must protect the,
“Manifest tenor of the constitution.”
God Bless,
Janine Turner
Monday, August 16th, 2010