Does The Second Amendment Codify Natural Law or is the RKBA A Man-Made Construct?

By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
KOLBE VS. HOGAN
PART SEVEN

Human Rights
Human Rights
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(Ammoland.com)-  The Underpinnings Of The Second Amendment Right Of The People To Keep And Bear Arms

Against the backdrop of every major Second Amendment case rests a fundamental and profound philosophical question. The question is this: does the right of the people to keep and bear arms exist as a quality, feature, attribute, aspect, condition, or characteristic intrinsic to the individual, existing, then, within the individual, or is the right to be perceived as an endowment, bestowed on the individual by others, something, then, extrinsic to the individual—existing, if at all, outside the individual?

If the right of the people to keep and bear arms is extrinsic to the individual, this means the right is a human invention. It is a construct, convention, or contrivance. It is a thing created by and then granted to, licensed to, or bestowed upon the individual by another entity, say the State, through Government. But, if it is a thing bestowed upon the individual by the State, then the right does not belong to the individual. The right belongs to the State. The State may, then, at its discretion, at its whim lawfully withdraw or rescind the right so bestowed upon the people. That means the right of the people to keep and bear arms is less a right than a privilege of the people to keep and bear arms—a privilege which the State may grant, or cede, or license to an individual, for a time, and, thereafter, at the State’s pleasure, rescind or withdraw. The individual has no legal recourse to contest the privilege rescinded or withdrawn except to the extent that law set forth in statute—also a creation of the State, through the State's government, yet another man-made construct—allows.

If, however, the right of the people to keep and bear arms is an inherent quintessential quality, feature, attribute, characteristic, condition or aspect of each person, existing within an person qua an autonomous individual, this means, by logical implication, the right exists outside of and independently of the State. If so, the right of the people to keep and bear arms operates as an extraordinary constraint on the State’s power, through Government to regulate and control the exercise of the right. For the right is indefeasible, immutable, archetypal, preexistent in the soul of man, and therefore resting beyond space and time.

In its purest application, the right of the people to keep and bear arms is absolute. The right cannot be constrained without also restraining and constraining the sanctity and inviolability of the individual soul. The right of the people to keep and bear armsthe operative clause of the Second Amendment–is not, then, a creation of man. The Second Amendment to the U.S. Constitution is simply a codification of, and an acknowledgment of the right preexisting in the individual. It is not a thing that can, lawfully, be defeated through legislation or really destroyed by the State, through government since it was never a thing enacted through legislation or granted or licensed to the individual by grace of the State through the State's Government. To suggest otherwise is mere pretense and artifice. The right of the people to keep and bear arms as a right, preexisting in the individual, is not a novel idea. The U.S. Supreme Court made the point in 1879, as Justice Antonin Scalia reminds those jurists who may have forgotten this critically important fact or who may simply have chosen to ignore it or belittle it. Justice Scalia says, “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.' As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1876), ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . .” Columbia vs. Heller, 554 U.S. 570, 592; 128 S. Ct. 2783, 2797-2798; 171 L. Ed. 2d 637, 657-658 (2008).

Human Rights
The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless.

How a Court perceives the right of the people to keep and bear arms informs a Court's resolution of all Second Amendment cases that come before it. Does a Court perceive the right of the people to keep and bear arms as a primordial, preeminent right preexisting in the individual, consistent with the framers' beliefs when the framers codified the right within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as recognized by the U.S. Supreme Court as early as 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in the 2008 Heller case, or does a Court simply view the right of the people to keep and bear arms as a man-made construct or invention, no more so nor less so than any man-made statute, code, rule, regulation, or ordinance? If a Court chooses to deny, or chooses to ignore, or, if a Court  simply chooses, seemingly and  conveniently, to forget the import of the operative clause of the Second Amendmentthe right of the people to keep and bear arms–as several United States District Courts and United States Circuit Court of Appeals are wont to do, as the United States Court of Appeals for the Fourth Circuit has done as seen in its disastrous Kolbe decision, the Second Amendment will lose its strength, its efficacy.

The right, though, does not cease to exist. It cannot ever cease to exist because the right is deathless.

The right exists in a person's very being. But, if a Nation fails to recognize and accede to the import of the right of the people to keep and bear arms, the right remains dormant, and a nation, any nation–but, in particular, our Nation–will loses its soul that would seek to deny to the individual his or her natural birthright. Tyranny will, then, inevitably, rear its ugly head, and if tyranny should arise, our Free Republic will surely fall, for the existence of a Free Republic is incompatible with the existence of autocracy even as government heads assert the continued existence of a republic in an attempt to assuage public consternation, public doubt, public enmity, and to quell rebellion–rebellion that would be impossible to effectuate anyway with the loss of a citizen army with the denial of one's natural right to keep and bear arms. Thus, the philosophical underpinnings of the sacred right embodied in the Second Amendment to the United States Constitution cannot be overstated. It is the hallmark of this Nation and of this Nation's regard for the autonomy, sanctity, and inviolability of the individual, as this is in accord with the framers' own core beliefs in codifying The right of the people to keep and bear arms within the Bill of Rights as the Second Amendment to the U.S. Constitution, and as, subsequently recognized by the U.S. Supreme Court in 1879 in the Cruikshank case and as reiterated by Justice Scalia, writing for the majority, in 2008, in the seminal Heller case. And it is the ultimate “fail-safe device” against tyranny. The attempt, any attempt by a Court to denigrate the right of the people to keep and bear arms is nothing less than an apostasy.

Unfortunately, as we have seen, although Courts will acknowledge the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), as they must when faced with a Second Amendment issue, this acknowledgement does nothing, of itself, to restrain courts from often blatantly ignoring the rulings of that seminal case, and, in so doing, ignoring the jurisprudential principles that ought guide judicial conduct in the resolution of a case before it, and, more so, committing the cardinal sin of undercutting the sacred precepts of our Nation.

The Heller case has cast the right of the people to keep and bear arms in stark relief. Lower Federal District Courts and higher Circuit Courts of Appeal can no longer hide their animus toward the Second Amendment by contending that the import of the Second Amendment has never been adequately resolved by the Courts or by academicians. The Heller case makes abundantly clear, in no uncertain terms, that the right of the people to keep and bear arms is a fundamental right and, more, a preexisting right, intrinsic to the individual, a right unconnected with one's service in a militia.

The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court's majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt. The Kolbe case ((Kolbe vs. O’Malley, 42. F. Supp. 3d 768 (D. Md. 2014); vacated and remanded, Kolbe vs. Hogan, 813 F.3d 160 (4th Cir. 2016); rev’d en banc, Kolbe vs. Hogan, 849 F.3d 114 (4th Cir. 2017)) is the latest in a line of poorly decided and poorly reasoned–and extremely dangerous–cases cascading through the legal system from Courts that directly and routinely and unabashedly attack the core of the right of the people to keep and bear arms. Kolbe is a case that aptly illustrates a U.S. Circuit Court of Appeal’s caustic attitude toward Heller, and, by extension, aptly illustrates the Court's disregard for application of case precedent to the Second Amendment cases before it; the Court's disregard for the sanctity of the American citizen as an autonomous individual; and the Court's refutation of the importance of adherence to the core traditions, values, and belief system as reflected in the Constitution and in the Republican form of Government that our framers created and passed down to us.

The Kolbe case aptly demonstrates that, once a Court disagrees with the philosophical underpinnings of the Second Amendment—that the right of the people to keep and bear arms exists within man, and not as a thing extrinsic to man—that Court will invariably rule for the State, against the individual. It will do so in clear contravention to and in clear defiance of case precedent, as set by the U.S. Supreme Court in Heller, and will do so in ostensible contemptuous disregard of our Nation’s historical traditions and in disregard of our Nation’s substantial jurisprudential history, manipulating law to derive a result consistent only with the Court's personal flawed philosophy, remarking, in its opinion, what, in the Court's view, the Second Amendment ought to say, rather than in adhering to what the Second Amendment does say, as clarified through the rulings and reasoning of the Heller majority.

THE BILL OF RIGHTS, AS A COMPONENT OF THE U.S. CONSTITUTION, STANDS PREEMINENT; FOR THE BILL OF RIGHTS, UNLIKE THE CONSTITUTION’S ARTICLES AND SUBSEQUENT AMENDMENTS, CODIFY NATURAL LAW, NOT MAN-MADE LAW.

The framers of our Constitution accepted, as axiomatic, that a critical component part of that Constitutionthe normative rights and liberties, of the Bill of Rights—are, in a critical manner, wholly unlike the main body of the Constitution. For, although the structure of Government is man-made, the rights and liberties codified in the Bill of Rights, are not man-made. The rights and liberties, set forth in the Bill of Rights are not social or political constructs, conventions, contrivances, or mechanisms. The framers knew that any Governmental form they created could, even with the best checks and balances in place, can still devolve into tyranny. The framers understood that the greatest threat to the sanctity and inviolability of each person, each American citizen—is the threat that the Federal Government might one day devolve into autocracy, into totalitarianism, into tyranny. To guard against this possibility, to offset the insinuation of tyranny, lurking behind the corner of every government formed by man, the founders of our Nation and framers of our Constitution, established, as a critical component of our Nation’s Constitution, an indelible Bill of Rights.

The Bill of Rights comprises a set of primary, primordial, fundamental, natural laws that Government must adhere to lest Government devolve into tyranny. These natural laws rest well beyond the power of the Federal Government, lawfully, to destroy. Preeminent among the natural laws that constrain the possibility of a despotic Government is the Second Amendment to the U.S. Constitution.

The framers understood that an armed citizenry protects the entirety of the Bill of Rights and that an armed citizenry is the single best guardian against and check on a Federal Government run amok and that an armed citizenry is the ultimate bastion against tyranny. Some jurists, though, do not appreciate the threat posed to a free Republic, in the absence of an armed citizenry. They don’t accept this. They are philosophically predisposed to regard an armed citizenry with trepidation, with suspicion; as a potential threat against public order. So, they don't accept the necessity of an armed citizenry. They do not and will not accept the emphatic command to the State, to a State's Government, to the Court itself, as a component of the State, of the Government. They do not accept, will not accept the idea that the Second Amendment is to be revered, respected, preserved, strengthened, exalted, as the framers intended. They don't accept this. But, they must. The Heller holdings and the legal and logical reasoning of the Court's majority, as penned by the late Justice Scalia, fell upon those courts, that find the Second Amendment anachronistic, like a ton of bricks. They don't like the holdings and they do not agree with the Heller majority's reasoning. So, they slither around Heller, pretending to adhere to it rather than truly complying with it, rendering decisions, antithetical to Heller, and, therefore, antithetical to the import and purport of the Second Amendment.

WHY THE HELLER CASE IS TRULY CRITICAL TO U.S. SUPREME COURT JURISPRUDENCE

Court Gavel
The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.

The Heller case is generally cited for its principal holding: that the right of the people to keep and bear arms is an individual right, exclusive of a person’s connection with a militia. But, in dicta, the Court's majority spoke, at several points, of the “natural right” of self-defense and resistance. To the framers of our Constitution, the right of the people to keep and bear arms is not a creation of government. The right exists intrinsic to man, as natural law, not man-made law. Justice Antonin Scalia refers to the right of the people to keep and bear arms as a natural right several times in the opinion he penned for the majority of the high Court, citing to the historical writings of the Second Amendment that he reports in the Heller case. Not surprisingly, the dissenting Justices for their part, notably Justices Stevens and Breyer, who penned two separate dissenting opinions, do not. The dissenting Justices do not even allude to the notion of a right of the right of the people to keep and bear arms in the context of natural law and natural rights.

The dissenting Justices on the high Court do not accept the facticity of the rights and liberties of man as codified in the Bill of Rights, as natural rights. These Justices—and many other judges that fill the seats on the lower U.S. District Courts and that fill the seats on the higher U.S. Circuit Courts of Appeal—do not and will not accept as axiomatic that the Bill of Rights comprises a set of indefeasible rights and liberties.

The liberal wing of the high Court and the liberal jurists of the lower Federal District and higher Federal Appellate Courts take as a jurisprudential principle, that the right of the people to keep and bear arms is no less a social, political, and legal construct than any other part of the law. For such jurists, the idea that the right of the people to keep and bear arms bespeaks natural law, outside one’s service in a militia, is not only false, it is patently ridiculous. Their opinions are infused with the notion that the Bill of Rights may be lawfully violated if utilitarian demands so dictate. None of the dissenting Justices in Heller would, though, make such a remark overtly and none have done so. But, since none of the dissenting Justices accept as axiomatic that the right of the people to keep and bear arms codifies a natural right, they fail to see how discordant their position is when they proclaim that such right of the people to keep and bear arms that exists is contingent only on one’s service in a militia. For, one might reasonably ask that, if a person's right to keep and bear arms is tenable only in the event one serves in a militia, then under what circumstance or set of circumstances might an individual ever vindicate the right so violated, if such right operates only in connection with one's service in a militia? And, if the right cannot be vindicated, is the right, then, not simply nugatory?

Justice Stevens, in his dissenting opinion, joined by Justices, Souter, Ginsburg and Breyer, attempts, unsuccessfully, to skirt as de minimis the question whether the Second Amendment codifies an individual right to keep and bear arms as opposed to a collective right. In the first sentence of his dissenting opinion, Justice Stevens says, “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” District of Columbia vs. Heller, 554 U.S. at 636; 128 S. Ct. at 2822.* How is the individual right to be vindicated legally–indeed, how is the individual right to be vindicated logicallyif that “individual” right is subsumed under or in connection with one's service in a militia? Is that right not, then, a mere “collective” right? But, if the right of the people to keep and bear arms is a “collective” right, how is that collective right to be vindicated? Is a collective right of the people to keep and bear arms, a right in any legal or logical sense at all?

Justice Stevens undermines the import of his own remark as he directs the entirety of his argument to the thesis that the right of the people to keep and bear arms is merely and solely tied to one’s service in a militia. The scope of the right is, apparently, the issue Stevens seemingly wrestles with in his dissenting opinion because he must realize the logical flaw inherent in it. Justice Stevens attempts to respond to Justice Scalia's logical argument that, on Justice Stevens' interpretation of the right codified in the Second Amendment, there is nothing in “the scope of the individual right” left to be protected. Justice Stevens cannot and does not adequately argue that there is something left of the individual right to be protected on his peculiar interpretation of the Second Amendment, because, once Justice Stevens accepts, as a premise, that the right of the people to keep and bear arms rests principally upon the person’s service in a militia, he cannot escape the implication of that premise, namely that there exists no individual right of the people to keep and bear arms left to be protected, as he has severed the right, which exists only in the operative clause of the Second Amendment, from the prefatory clause, and, in so doing, he attempts, unsatisfactorily and unjustifiably, and, indeed, incoherently, to insinuate the right into the prefatory clause. But, there is no legal or logical, or linguistic way in which he might reasonably do this. Thus, the right of the people to keep and bear arms cannot be protected, which is to say vindicated, in any manner, because the right is contained, according to Justice Stevens, in the prefatory, dependent clause of the Second Amendment. The prefatory clause, though, has, in its very language, no operative force. It talks of no right at all. So, there is nothing in the prefatory clause that can be vindicated. Justice Scalia laid bare the problems with Justice Stevens argument. Justice Stevens, for his part, had no adequate rejoinder. Justice Scalia, writing for the majority, pointed out that;

 “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed [citation omitted]. . . . Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.'” District of Columbia vs. Heller, 554 U.S. at 577; 128 S. Ct. at 2789; 171 L. Ed. 2d at 648, 649 (2008).**

Moreover, if one assumes for purpose of argument that a right does exist or can be implied in the prefatory clause of the Second Amendment, that somehow carries over to the independent, operative clause, that still doesn't help to salvage Justice Stevens' argument. For, the State, through Government is, then, and, in fact, must be, the final arbiter not only of what firearms the individual may possess but whether the individual may possess any firearms at all, outside of that individual’s connection with a militia. But, if that were so, then, once it is posited that the Government has sole authority to regulate the kinds of firearms a person may possess in his or her individual capacity, or whether a person may possess any firearms at all, then, the right of the people to keep and bear arms, as a right exercised by the individual, is subject to the whim of Government. The right, then, is not a real right at all, as the “right” may very well be regulated out of existence. The right, then, is ephemeral. It simply falls away. This is the salient problem with Kolbe and those cases that, like Kolbe, accept, at least tacitly, the absolute power of Government to dictate the kinds of firearms that Americans may possess and, ultimately, whether Americans may possess any firearms at all.

We continue with our exegesis of Kolbe in light of the Heller case in Part Eight of this series.

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*Did Justice Stevens pilfer from a law review article having failed to acknowledge the source? Consider and compare the remarks in the first paragraph of Justice Stevens' dissenting opinion in Heller to the following statements that appeared in a law review article written nine years before the high Court decided Heller: “There are two relevant Second Amendment questions. The first question is whether the right belongs to the individual. Professor Yassky [David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment – A Response to Professor Kopel, 18 St. Louis U. Pub. L. Rev. 189, 190 (1999) (debating scope of individual's rights under Second Amendment)] believes the question to be confused because ‘all constitutional rights – even those most obviously concerned with government structure rather than individual freedom – ultimately belong to individuals in the sense that individuals can sue to vindicate them.' The proper question assumes that the  Second Amendment recognizes some individual right but asks what the scope of the right is. This article argues that the scope of the individual right is limited to those circumstances in which the individual participates in a government militia.” From, “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate Over the Right to Bear Arms,” 16 St. John's J.L. Comm. 41 (Winter 2002), by Robert Hardaway, Elizabeth Gormley, and Bryan Taylor.

**Curiously, after Justice Stevens retired from serving on the United States Supreme Court, he attempted, apparently, as set forth in his book, published in April of 2014, titled, “Six Amendments: How and Why We Should Change the Constitution,” to come to grips with if not to circumvent the problem, with his thesis as pointed out by Justice Scalia. Justice Stevens' contended, as set forth in his dissenting opinion in Heller, that a way exists through which the right of the people to keep and bear arms” may be vindicated. Justice Scalia explained that, under Justice Stevens approach, though, that, under Justice Stevens' thesis, there is no manner in which the individual right of the people to keep and bear arms can be vindicated, that, under Justice Stevens' thesis, the right is nugatory. Justice Scalia had proved that the right of the people to keep and bear arms cannot be vindicated through the prefatory clause, “A well-regulated militia being necessary to the security of a free State,” because the right–on the plain meaning of the language of the Second Amendment–does not exist in the prefatory, dependent clause and cannot logically be transported into “the right of the people to keep and bear arms shall not be infringed exists in the operative, independent clause only, for that is where the right is expressly stated.

There is no logical, rational reason or basis for inserting the right of the people to keep and bear arms into the prefatory clause and tying the intrinsic right of the individual, inextricably, to that individual's connection with a militia. For, there is no mechanism for vindicating the right when the right is tied to one's connection with a militia. Thus, there is no right to be vindicated and the Second Amendment, as a codification of and assertion of a right, would be, must be nugatory. Apparently realizing this and not acceding to the idea that the right of the people to keep and bear arms is an individual right, preexisting in the individual, not connected with service in a militia–as these ideas are not philosophically acceptable to Justice Stevens–Justice Stevens suggests, in his book, that the Second Amendment should be rewritten as: “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in a militia shall not be infringed.” Justice Stevens apparently sees this rendition of the Second Amendment–which, by the way,  does not comport with any such suggestion by any of the framers of our Constitution–as a tenable way to get around the late Justice Antonin Scalia's contention   that, on Justice John Paul Stevens interpretation of the right of the people to keep and bear arms, there is nothing left of the right to be vindicated. Justice Stevens apparently believes that, in his novel rendition of the Second Amendment, the right of the individual is, now, successfully limited but still vindicated, and the Second Amendment is not, then, nugatory as he has now tied the right of the people to keep and bear arms specifically, linguistically, indisputably, to a person's connection with a militia. The right is duly limited but expressly stated in the operative clause. But, there is still a problem, and it is a problem quite apart from the fact that Justice Steven's reworking of the Second Amendment fails to comport with any view of the import of the Second Amendment as set forth by any of the framers of the U.S. Constitution, and it is a problem that cannot be surmounted through the rewriting of the Second Amendment, which, is, by any account, an extremely drastic way to respond to the fatal flaw in his argument. For, even accepting, on logical grounds, that there is something to be made of Justice Stevens' redraft of the Second Amendment as a way to avoid the flaws in his position, as he has set forth that position in his dissenting opinion in Heller, the question arises how a group right, that is to say, a collective right, is to be vindicated. Justice Scalia had remarked on this point as well, in pointing to another flaw in Justice Stevens' position, that Justice Scalia referenced in the majority opinion he penned, in Heller.

How, one might ask, might one petition the Courts for vindication of a right purportedly tied to one's service in a militia? Moreover, suppose the militia, “necessary to the security of a free State” though it be, as set forth in the prefatory clause, ceases to exist. Wherein is the right, that one may exercise, be vindicated if there is no right left to be exercised? What, really, is there left of the right? One may ask: was there ever truly a right that might be vindicated at all?  As Justice Scalia pointed out, the necessity for the armed citizen lay not in the existence of the militia but in the force of arms of the citizenry that the citizenry brought to the militia and that made a militia possible. Justice Scalia, writing for the majority said, “. . . the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right–unlike some other English rights–was codified in a written Constitution.” District of Columbia vs. Heller, 554 U.S. at 599; 128 S. Ct. at 2801; 171 L. Ed. 2d at 662 (2008). It is the right of the people to keep and bear arms, that is to say, in the individual ownership of and possession of firearms, in and of itself, that is critical to the exercise of and vindication of the right, a right unconnected to service in a militia or in connection with any other man-made creation; and in that exercise of the right intrinsic to, immutable, indestructible, preexisting in each person, where each person is perceived as an autonomous individual, whose individuality must remain sacred and inviolate, would the security of a free State be preserved. An armed citizenry resides in what remains, today, of the true militia, namely, the unorganized militia, and that unorganized militia is not equivalent to or equated with, nor is it to be considered equivalent to or equated with the “organized militia,” namely, the National Guard of each individual State that exists as a reserve military arm of and for the Federal Government, as dictated by Federal Statute.

Better it would have been for Justice Stevens to accept that his thesis regarding the Second Amendment is wrong and that Justice Scalia is correct and that Justice Scalia was correct all along. But, Justice Stevens doesn't accept the plain meaning of the Second Amendment; he refuses to do so on a deep, visceral level. Justice Stevens absolutely refuses to accept the plain meaning of the Second Amendment as set forth in the Constitution, and in refusing to accept the plain meaning of the Second Amendment, Justice Stevens is taking exception with and contending with the deeply held beliefs of the framers of our Constitution. So, Justice Stevens is compelled to hold onto the legally deficient, logically unsound, and ethically dubious notion of an individual right of the people to keep and bear arms that happens to be tied to and exercised only by one's service in or connection with a militia.

In point of fact, though, the “organized militia,” as such no longer exists. It has been subsumed into and, more accurately, replaced by the “National Guard,” which has become a reserve component of the federal Government, subject to federal control. This might not bother Justice  Stevens although it might be of concern to others. Justice Stevens seems to be more concerned with the logical coherency and consistency of his position, as well he should be, that requires that a right exercised by an individual must, in a logical sense, to be considered a true right at all be capable of vindication if violated. Justice Stevens seems less concerned over the practical application of the right that is to be vindicated, though, which, consistent with his thesis, is a contingent matter, after all, contingent on the existence of a militia. If there exists no militia, then, apparently, the failure of the condition precedent does not negatively impact the fact that a right may, at least, logically, if not empirically, that is to say, factually, be vindicated. In other words, the right to be exercised, albeit, one tied to the militia, under Justice Stevens' thesis, does always exist. For, Justice Stevens does, after all, in his redraft of the Second Amendment, retain the words, “shall not be infringed.” So, if the militia exists, then the right may, Justice Stevens would argue, be vindicated. If the militia does not exist, the right, although it still exists, cannot be exercised and cannot be vindicated. The success or failure of a right to be vindicated is a function of the existence of the militia. But, then, what does it mean to say the right, supposedly, always exists? This is a tortuous attempt at legal and logical manipulation of concepts to give credence to an idea that Justice Stevens, doesn't even truly accept–that the right of the people to keep and bear arms {a right that shall not be infringed by anyone or any entity} if such right truly exists, beyond the power of the State to lawfully destroy, must be a right  preexistent, immutable, indestructible, and absolutely capable of exercise in all instances, for all time, beyond the possibility of any conceivable contingency that might serve to make the right impossible of exercise (as for example the nonexistence of a militia). Thus, merely tacking on this or that phrase to a proposition, in a dubious attempt to erode an indestructible right and in an attempt to overcome an insurmountable, logical flaw that exists in his argument, the retired Justice, John Paul Stevens cannot successfully sidestep the problem inherent in Justice Stevens' thesis that the late Justice Antonin Scalia had perceptively pointed to in Heller.

Anyway, the proposed redraft of the Second Amendment, insufferable and ludicrous as that proposed redraft is, appears, then, to be, in part, at least, Justice Stevens belated answer to the late Justice Antonin Scalia's sharp attack on the weaknesses of Justice Stevens' argument as evinced in Justice Stevens' dissenting opinion in Heller.

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  • 32 thoughts on “Does The Second Amendment Codify Natural Law or is the RKBA A Man-Made Construct?

    1. Read the Preamble to the Bill of Rights. It says that the amendments are RESTRICTIVE and that several of the States demanded their inclusion into the COnstitution as a condition of their ratification of said COnstitution.

    2. @WildBill, sir I am in full agreement with your post. How much more is needed to affect the changes that will insure the security of our once great nation? I am ready to give my blood and treasure to win the re-birth of of our republic. I fear we are too few for this purpose. Never the less it is a noble task and must be attempted. President Trump is the leader we need in these troubling times. It is my fervent prayer that the greater number of citizens support his and our cause. America can be great again but not without men like yourself and others who post here. These posts give hope and prove the spirit of the founders is still alive. The future we leave to our children is at stake. A prize worth all in my opinion. Thanks to you and all others who love life and liberty!

    3. The TRUTH IS: That the FIRST ten Amendments of the Constitution are listed to enumerate GOD GIVEN UNALIENABLE rights among them Speech, religion, freedom from searches, freedom from testifying against your self and most important of all the RIGHT to bear arms for self protection. ANY so-called LAWS that stand between that GOD GiVEN RIGHT are illegal and should be declared null and void by the Supreme Court.
      GIL does need to retreat back to the bathroom and his brown playdoh fished from the toilet.

      1. How are you denied the right to self-defense? Or like all gun nuts you play fast & loose with the definition of “self-defense?”

        1. Gil, you’re not fooling anyone. Gun control is really gradual disarmament. True that they aren’t going to require turning in guns nor are they sending out SWAT teams to take guns from people but they are trying to implement an incremental disarmament strategy. In order to fool gun owners into accepting background checks and restrictions on the ownership, transfer, and transportation of guns they have to hide the real purpose of these measures. Some articles on the subject:

          The Second Amendment must go: We ban lawn darts. It’s time to ban guns
          http://www.salon.com/2015/12/04/the_second_amendment_must_go_we_ban_lawn_darts_its_time_to_ban_guns/

          The Clinton Files II
          https://www.americas1stfreedom.org/articles/2015/12/22/the-clinton-files-ii/

          A video on disarming us:

          Dianne Feinstein Says Her Goal is to Disarm All Americans!!! ( 60 Minutes – 1995 )
          https://youtu.be/Mj4AcjyuV38

          Just look at what the poor, unarmed Venezuelans are going through at the bloody hands of their well armed govt. We can’t let that happen here.

            1. “Blah, blah, blah…” So the lefty surrenders the debate. What’s the matter Gil, too much truth for you? Can’t you even put a couple of sentences together to prove me wrong?

    4. The author makes the statement;
      “The high Court has provided clear guidance for resolution of cases that involve government actions that attack the core of the right of the people to keep and bear arms. Lower federal courts that ignore the clear intent of and clear reasoning of the seminal Heller case, do so at their peril. For they can no longer hide behind obfuscating language if they choose to ignore the holdings of the case and the reasoning of the Court’s majority in rendering those holdings. They can no longer claim that the meaning and purport of the right of the people to keep and bear arms is still in doubt.”. Key words here…”do so at their peril.”.
      WHAT PERIL? There is absolutely nothing being done to rectify the wrongs of these lower courts! These courts, as with the SCOTUS, take an oath to uphold the Constitution & the Bill of Rights…to render their interpretation of the LAW of the Constitution & to make sure the RIGHTS of the citizens of the United States of America are upheld, beyond any scrutiny. If they refuse to comply, actions need to be taken…swiftly & prudently. There are certain irrefutable facts in life that, although can be disagreed with, hold true beyond doubt or scrutiny. One such “truth” being, if you’re bitten by a rattlesnake, you WILL feel the effects & possibly die. Another “truth” is…& more importantly so…the 2A stands on its own merits, beyond scrutiny, beyond interpretation, beyond man’s judgment. That’s why it is an inherent right & inalienable. Any court, be it city, county, state, district, region, federal or Supreme, are bound by the same indoctrination of upholding these laws & rights. Laws, can & must be interpreted to fit individual occurrences. Rights, shall be & must be upheld as God given…not man given. Make the courts that skirt the precepts of this truth, be held accountable, not freely ignoring while being simply “aware of their peril”.
      I’m all in for Class Action Suits to courts that deem themselves above their Constitutional duties & make themselves out to be contemptible by shirking their bound oaths. It’s time to stand.

      1. Too true. That falls upon WE THE PEOPLE who have selected various “representatives” with certain responsibilities. Judges are appointed to serve “upon good behaviour”. It falls to our elected legislators to rise up and deal with judges such as you describe. When a few prominent ones find themselves shorn of their black pyjamas and standing in a soupline for their daily bread, others will take note and begin to comport themselves more faithfully. Perhaps THEN our courts will begin to function as they ought.

        1. We the People can not move our representatives to right these wrongs. Do you see any movement toward those ends in Congress? The Republicans said we need the Senate as well as the House to stop Obama. We have them the House and Senate. Then the Republicans said We need the White House, too in order to repeal all that Obama has done. We gave them the White House, too. Now, the Repubs are saying we need to win everything in the 2018 elections and send us more political contributions.
          The corruption is too deep. We send them a man that has the best interests of ordinary Americans at heard and both parties, the media, and the bureaucracy are all trying to get rid of him. Perhaps more is needed.

          1. That’s what I was saying about absolutely nothing being done to rectify what these lower courts…& unfortunately, the SCOTUS too…have turned a blind eye to. Our legislative clown act has been resting on their laurels way too long. They have become career puppeteers with the privaleges WE THE PEOPLE have set them up in, hoping they would do what’s right for the country…the people.
            Tionico is right. It’s up to us to get these useless POS out of office & make sure we get someone that actually cares about what all this hoopla is about. Otherwise, we’ll never give “them” enough of what “they” need to satiate their political motivation. I hate politicians! I think that’s why I like Trump.

    5. Gil. Your second comment makes your reasoning clear now. Go back down to mom’s basement and play with your. Barbie dolls and video games, and leave the intellectual conversation to literate adults. Game of Thrones, indeed.

    6. Even psychosocial scientists and spiritual developmentalalists realize this. Erik Erikson’s second stage of psychosocial development is called AUTONOMY vs. Shame an Doubt. An individual is intrinsically born FREE as an autonomous being. If not allowed to have Autonomy, shame and doubt “progress” (shame is the manipulative force of the progressives) which eventually turns into the death of the psyche, prevails. One has to have autonomy in order to take initiative, develop a sense of personal industry, develop an identity to become a productive member of society (Erikson) instead of a slave to the state and its mercantilistic partners.

    7. A nice article but ultimately an incomplete one. Property rights are part of this equation also. The author seems oblivious of the fact that gun rights are but property rights. We have a right to guns in the same way that we have a right to toothbrushes & patio furniture (just to name a couple of things). People have a right to their property. Guns are property. Separating people from their guns by force is theft of those weapons. Regulation of guns is violating property rights by interference (as opposed to complete denial).

      Secondly, the 2A is not only about the RKBA, not only about the right to organize to exercise the RKBA. The 2A & other parts of the CONstitution call for the govt not to have standing forces at its disposal IE no standing law enforcement & no standing army. Article 1, sec 8, clause 15, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”. That’s it, the only CONstitutional way to enforce federal law is the militia, period. The document makes no other mention of how to enforce federal law. Anything else in unCONstitutional.

      1. True enough, but remember THIS one article is part of a series, and is thus limited in its scope. that scope is clearly laid out, the boundaries delimited, and some reference made to other articles in the series that deal with other aspects of our Constitution.

        You are correct, the ownership and free use of arms IS intrinsically no different than of other items of property.

    8. Our ancestors loved to fight and duel and wouldn’t understand our modern concept of “proportionality of force.” Hence they wouldn’t understand violence and weapons regulations.

        1. Why? Our ancestors would have intuitively understood the right to bear arms. Heck there are lists of real life violence in the Medieval period that are more intense that Game of Thrones.

          1. You miss the entire basis for the ruling in Heller. The right to bear arms is a defense against exactly what is happening, and that is this disarming of the citizens and people of this country in order to rule them unfettered by any fears of uprising. This single individual right ensures and protects all other rights in the Bill of Rights and is the backbone of all of our freedoms. You choose to change the subject entirely by bringing up the criminals who use their weapons for offensive purposes. Laws exist to address these matters without disrupting the basic rights and freedoms of the Constitution. Once this (the second amendment) is destroyed by the liberal factions out there, then any other freedoms set forth by the Bill of Rights can be removed. We are already seeing the path of the liberals in that they riot and attack those who speak against or contrary to their own personal beliefs. They clearly are assaulting the First Amendment concurrently with their attacks on the Second Amendment. This cannot be allowed.

            1. What nonsense! You seem to think the 2A gives you the right to go on a mass shooting of politicians without consequences? Weirdos like you seem to forget you already have the right to use deadly force when facing a violent imminent threat and call it self-defense. Any other use of force is arguing you want to use offensive violence and have it legal.

            2. What nonsense Gil. You have to understand where our country was at the time the Bill of Rights was written. Even though it was way back then when the writers fought against a tyrannical Britain, that does not mean that a situation could not again rear it’s ugly head where the masses decide to retake their freedoms that are denied by the government (politicians) who have chosen to deprive the citizens of their God given rights. To suggest that a situation could never take place is total nonsense on your part. Our forefathers of our country saw that their being armed was in fact how those freedoms were solidified for all of us who followed. As I have said before good sir, that right cannot be infringed as it is the protection of all rights. Go back and study the real history of our constitution and not your fantasy world version.

            3. Tyrannical for whom? By today’s standard the British Crown was practically Libertarian. After the Revolution most people were worse off with 3x higher taxes than they had under British rue. Not to mention slavery was strengthened and Native Americans lost all of their land rights.

              Once again – what are these magical freedoms you think have lost? The rule of law should be made up of police and court but militia groups? You and your friend get to take down group that you feel are “anti-American” with violent force? Or best of all, the People get grab their guns, marched into government buildings and shoot dead everyone they find in there and have it seen as legal?

            4. How does the Right exist when there is a “Sedition” law, which basically says that if anyone takes up arms against the US GOvernment, they can be summarily squashed and imprisoned/executed. I supposed that to do so, Citizens would have to have solid evidence of tryanny or despotism in order to form, militarily, against the so called “Legal Authority” of the United States Government.

            5. Sedition laws were implemented after the writing of the Constitution and the Bill of Rights. You must go back to the original date of the writing of this instrument to understand what their thought process was at that time. The Federalist Papers and many other writings explain that the need for protections from an overextending government is achieved through armament of the citizens. This is the point I am making yet several here want to extend it to today’s government. I am not at all suggesting that this would be the case today, but there will always be the potential for a government, so expanded, that the basic rights in the Bill of Rights gets so eroded that a call to arms of the citizens could occur. Could a president refuse to leave office and become a dictator? Could a political party become so entrenched as to deny an opposing point of view to even speak out and exercise their First Amendment rights? This one is already taking place in California when a Conservative speaker goes there to speak. Could a political party deny or erode the second amendment and encourage the disarmament of the citizens? This one too is taking place as we speak by many in the Democratic party. If you let even one get eroded, then all are in play to be eroded. Our Forefathers and Writers of the Constitution foresaw those potentials and carefully worded that documents to leave safeguards in place to defend it. That is all I have been saying all along yet some out there do not want to understand the history of the document. Contrary to what the Democrats and Liberals want to believe, the Constitution is not a living document. It is etched in stone. That is why our Forefathers set in place a stringent process to change it. No judge, no politician and no citizen has the authority to do so on their own. Times change but the document does not unless of course it is done so by the legal means set forth in it.

          2. @GFYG I once ask you a question you were apparently afraid to try to answer. Once again you delve into that area of ancestory . So you will know the last confederate general to surrender was a man called Stands Waiting, guess what full blood Cherokee Indian! He had a full army compliment under him, guess what American Indians all of different tribes. Now you tell me who had any greater reason to fight the union army! Tell me any people who should have benefited from the 2A! Tell me they were not Americans. So you see what happens if you let the liberals isolate one group from another then take their rights away.

        2. @CK, What is this “Our ancestors” crap? Unlike GFYG, I knew my ancestors. Nothing that he has written here, today, could be further from the truth. He makes up history, and makes up facts, to support his made up theories. And don’t be including my ancestors in with your ancestors.

          1. I’ll mention ONE of my ancestors and the part arms had in HIS survival and later prosperity. An unbroken line back to this gentleman has been traced in my family. He, and his faithful men, rendered strong armed support to WIlliam of Normandy as he prevailed in the Battle of Hastings. Had that battle gone elsewise, we’d likely not be sitting where we are and doing what we’re doing as England as a nation would never have come into being.

            A long line of my ancestors continued to take up arms when necessary to preserve “the security of a free state”. And that was ongoing long before this nation was even conceived, let alone founded.

      1. Gil, you couldn’t be more wrong. Even your own post argues against you. When dueling, both parties used the same type weapons or agreed upon weapons. That is proportionality of force and regulation.

        However, as typical, your post has nothing to do with the commentary.

    9. Good Lord, way to lawyerissimo the question. People have rights because they have responsibilities. In this case, the responsibility to defend life and safeguard the nation’s liberty. That’s it. Anything that threatens that threatens life and liberty.

    10. The right to “bear arms” existed before humans did. The first hominid that picked up a stick to protect it’s life had that right. The 2A protects “the people” from our government, any laws that “infringe” on that right (Federal or State) are unconstitutional and illegal.

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