Rights Protected by the Second Amendment are Being Restored, NOT Created

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U.S.A.-(AmmoLand.com)-— The jurisprudence of the Second Amendment is: it was ratified to protect the existing right of the people to keep and bear arms. It did not create new rights. One reason to protect the right was to enable the creation of militias from the armed population.

It was well understood, at the time of ratification, the right to keep and bear arms included the right to do so for self-defense as well as community defense, for hunting, and included the ancillary rights to practice, buy, sell and make weapons, as well as ammunition and accessories for them. These rights were not disputed and were considered to be derived from the natural rights to life and liberty. From Heller:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

The American Second Amendment was recognized as needed because the English right to arms had been construed too narrowly to protect the colonists against the exercise of power by King George and the British Empire. The Americans had recently fought a long and bitter war sparked by the British attempts at disarming the American colonists.  The initial battles of Lexington and Concord were direct attempts by the representatives of the British Crown to confiscate gunpowder and, particularly, cannon.  Cannon were crew served weapons. The officers of the Crown confiscated plenty of individual weapons as well.

On April 3, 1775, the British government seized 13,425 musket cartridges with ball.

On April 19, the famous battles of Lexington and Concord occurred.

After April 19, General Gage worked to disarm Bostonians:

Then per the Connecticut Current newspaper, a General Gage decided to change the British narrative. He noted that the British just wanted to hold the guns for a little bit “for safe keeping” and then they promised to return them, “And that, the arms aforesaid at a suitable time would be return’d to the owners.”

Bostonians proceeded to turn in 1778 muskets, 634 pistols, 973 bayonets and 38 blunderbusses.

In June of 1775 General Gage declared martial law and offered to pardon all who would lay down their arms— except Samuel Adams and John Hancock. Per the (Connecticut Journal and New-Haven Post-Boy, June 21, 1775).

In 1777, at the height of the war, there were proposals to ensure the American colonists would be disarmed if the British won the war.  This proposal was floated by General William Knox, the British Under Secretary of State:

The Militia Laws should be repealed and none suffered to be re-enacted, & the Arms of all the People should be taken away, & every piece of Ordnance removed into the King’s Stores, nor should any foundry or manufactory of Arms, Gunpowder, or Warlike Stores, be evre suffered in America, nor should any Gunpowder, Lead, Arms or Ordnance be imported into it without License; they will have but little need of such things for the future, as the King’s Troops, Ships Forts will be sufficient to protect them from any danger.

The Second Amendment was meant to defend against this sort of government power and overreach.

In a blatant attempt to rewrite history, those who want a disarmed population claim the right to bear arms has been recently created by the Supreme Court in the Heller, McDonald, Caetano, and now Bruen decisions. They use the misleading claim that the Supreme Court had never declared the Second Amendment to either protect an individual right or the right to carry arms outside the home, until the decisions mentioned. They often claim the Second Amendment created the right to keep and bear arms.

Those claims are misleading and/or false, depending on the precise wording. The Second Amendment did not create anything. It protected existing rights.

A large minority of people, perhaps a majority, believed the Second Amendment applied to the individual states and the Federal government before the Civil War. Perhaps the most famous of these was Chief Justice Taney of the Supreme Court, writing in the Dread Scott decision in 1857 about the dangers of recognizing black people as citizens (bold added):

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

In 1833, two generations after the ratification of the Second Amendment, the Supreme Court ruled the Bill of Rights did not apply to state laws. The court case was Barron v. Baltimore. The Fourteenth amendment, passed after the Civil War, in 1868, was specifically crafted to overturn Barron.

The effect of the Second Amendment becomes obvious when one realizes the federal government did not pass any law infringing on the right to keep and bear arms from ratification until the 1930’s.  Even then, the law was crafted to circumvent the Second Amendment.  While the Supreme Court, from time to time, referenced the Second Amendment as protecting an individual right, no federal laws infringed on the right to keep and bear arms until the infamous 1934 National Firearms Act and the 1938 Federal Firearms Act.

Without federal infringements, there were no Supreme Court cases to contest.

The Supreme Court gutted the Fourteenth Amendment after Reconstruction, refusing to enforce it because there was no political will to do so. Enforcing the Fourteenth Amendment would have risked another Civil War to enforce minority rights of freed slaves in the South.

The Bill of Rights started to be enforced under the Fourteenth Amendment, gradually, about 1900, a generation after being ratified. The Progressives, who took and held power from 1932 on, were adamantly opposed to limits on Government power. They especially hated the Second Amendment. With Progressive judges in most federal courts, the Second Amendment was not incorporated under the Fourteenth Amendment until the McDonald decision until 2010.

The Heller and McDonald decisions do not create new rights. They restore rights which had been gradually infringed on by the States and then the federal government.  Until 1968, Americans could order anti-tank and anti-aircraft guns and ammunition, through the mail, to be delivered to their door. Violent criminal use was virtually non-existent. Only one example is known.

As the infringements on rights protected by the Second Amendment mounted, the resistance to those infringements grew louder and stronger. The Supreme Court did not suddenly decide to enforce the rights protected by the Second Amendment. Rather, they reacted to the enormous, strong, persistent call for restoration of those rights by a loud and successful grass-roots movement, which could not be denied. Reinforcing the movement was voluminous scholarship showing how the Second Amendment had been gradually infringed, particularly after Reconstruction and during the Progressive era. By the time of the Bruen decision, half of the states had removed most of the infringements on the carry of handguns (Constitutional Carry, no permits required).  There were no bad effects from this restoration of rights.

Two Decades of Constitutional Carry Progress

Leftists like to start history when Progressive ideology started to gain ascendance in academic and political circles, about 1900.  That is when serious infringements against the rights protected by the Second Amendment became popular in some state legislatures, such as New York and California. A poor decision by the Supreme Court of Kansas in 1905, started the myth the Second Amendment was meant to protect a “collective right.”

When Justice Clarence Thomas, in the Bruen decision, required historical evidence of accepted legislative practice in force when the Second Amendment was ratified, or to a lesser extent, the Fourteenth Amendment was ratified, he prevented leftist ideologue judges from cutting history off at 1900, and claiming anything before then does not matter.

This is basic originalist and textualist Constitutional law. The text matters to be interpreted in the meanings understood when the amendment was ratified.

A basic assumption of Progressives is the Constitution is outdated and has to be “worked around” or “interpreted” to reach conclusions judges wish to make today, based on their desires for the current society, or their desire to alter it.

The argument is: That was then. This is now. Things are different. Old agreements are invalid.

Consider trying to operate your life with that philosophy: You purchased a car insurance policy with a $100 deductible. When you submit a claim the response is: That was then. This is now. The deductible is now $500.  Or, you agree to work a job. Your work is impeccable. The employer is not allowed to fire you because of your race, by law. Then, you are fired because you are white.  That was then. This is now. You purchase a home. Payments are $1,000 a month. The bank suddenly says: Your payments are $2,000 a month, violating the mortgage agreement. That was then. This is now.

When you hear “arguments” such as:

  • The Second Amendment only applied to single shot muskets.
  • There were no automatic weapons in the revolutionary war.
  • Guns were not mass produced during the revolution.
  • We do not need a militia now.
  • The National Guard is the modern militia.
  • We are not hunting for food or fighting hostile tribes today.
  • More people are living in dense cities today.
  • You don’t need a gun today.

Those are all “That was then, This is now”, arguments. Essentially, the argument is: your rights can be disappeared anytime the powers that be want to do so, based on the exigencies of the moment.

The Constitution is a contract between the people, the federal government, and the states. There are means to amend it within the Constitutional framework.

The Constitution is not a document subject to That was then, This is now flimflam, no matter how much leftists/progressives wish it to be.

Propaganda claiming the right to keep and bear arms is a new right, created by the Supreme Court, are versions of the: That was then, this is now, argument.

The individual right to keep and bear arms both inside and outside the home, is not new. It existed before the Second Amendment. It has not been created recently. It is being restored.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Henry Bowman

The 2nd Amendment and every other liberty we enjoy is under attack by the Left. They want absolute power forever and our God-given Rights stand in the way of that. They have already systematically done away with free, honest & open elections. They will control the Executive, and in due course will have permanent control over Congress. Then they will set to work to remove all independent and conservative justices from the federal level all the way down to the local. This is what’s happened in Brazil, and that’s how the communists there secured their power (with lots of help… Read more »

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Augusto Pinochet

Yes.. Hint: it involves helicopters…

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Watch um

God given, the liberals don’t believe in God is the problem.
I really don’t believe that there will be one Democrat in heaven who does not believe and obey God’s word

UncleT

That’s where NATURAL rights comes into play….or suppose too. To appease the Athiests.

buzzsaw

I’ve always thought that Atheists have a better argument for the right of self defense than religions with an afterlife. If this life and world are merely a dress rehearsal for the eternal one that comes after, then who cares? If you get killed, you just start the eternal one sooner. However, if there’s only one world, and you only have one finite life, mere scarcity makes that life immeasurably more valuable. A right to try to stay alive as long as possible is a property of life itself, and extends to everything alive.

Oldvet

buzz … They have an afterlife also …It just depends where they are going to spend it.

CourageousLion

Check out “The Ghost Inside my Child” series. And let me know what THAT seems to show. https://www.imdb.com/title/tt3107588/

Deplorable Bill

Buzz, why are diamonds sought after? They are rare, they are durable etc. This life is such and you are blessed just to be here. Compared to eternity it is just a wisp of air. You will have eternity to discuss the goings ons here. So this life IS precious, valuable and worth defending. As for the better argument of Christianity vs atheisms, I would show you this; “If a man has no sword (the assault weapon of that day), he is to sell his cloak (his outer garments), and buy one”. You will find that written in GOD’s WORD,… Read more »

Henry Bowman

Flawless answer!!

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Deplorable Bill

Good job Dean. The second amendment applies to all free, non incarserated, American citizens. Privileges can be taken away legally but not rights. You drive drunk and you loose your drivers license, very simple. It is our own government, rather, the evil people running it, that are trying to destroy the GOD given, constitutionally protected and guaranteed rights and freedoms that America enjoys or is supposed to enjoy. Those people are nothing but thugs with Sir names, political positions, progressive judges and lawyers and enforcement badges — evil, every one of them, no different than a terrorist. If this were… Read more »

TNJEWBOY

My new name for them is.

BILLIONAIRE TERRORISTS

CourageousLion

Travelling with an automobile has been degraded by the government for revenue generation purposes to a privilege called “driving”. Using an automobile for private purposes is not a privilege. The test is this…could I do the act without damaging someone if there was no government. If the answer is YES, than the act is a RIGHT.

Sisu

Agree. Freedom to travel on common paths, ways and roads is an “unenumerated right”; “trespass” on “private property” is not. Also, I expect the historic record would likely show, the mode of transport might be regulated to a limited extent as a matter of “common good” in order to reduce unintentional torts; excepting intentional torts (mens rea), negligence, gross negligence and acts of depraved indifference. All leading to an emerging area of government overreach from creeping regulations to infringement against the “freedom to travel”. Specifically, now “kill switches” mandated in future vehicles and attempts to “preclude” the manufacture of internal… Read more »

Steve

And, as many of you have witnessed over the past 20 years, it is NOT just the Government(s) that have been aggressively trying to destroy our individual God given rights. An increasing number of large corporate entities are engaging in a full out “war on individualism” along with trying to destroy the sovereignty of nations in order to create a “New World Order”. Look no farther than the Climate Change Zealots, the WEF and those pushing unlimited, unfettered “migration”.

Montana454Casull

FJB and all Democrats and RINOs trying to rewrite our constitution and do away with the only protection we the people have as a referendum on these bunch of corrupt criminals posing as our leaders .

Ledesma

Most living New York and Chicago residents had lost their 2A rights before they even got born. And no Americans anywhere need the 2A more urgently than they do.

Last edited 19 days ago by Ledesma
Steve

It has also been my experience over the past 50 years of living on my own after leaving “the nest” of a farm in Wisconsin, spending 30 years in the Army, that most Chicagoans and New Yorkers who move to free state areas – they have no idea how to live in a loosely regulated area. They invariably bring that big brother, nanny state mentality with them – they know no other way to live. Same with a lot of Californians that grow up in large urban areas like LA or San Fran.

Green Mtn. Boy

Regardless of the ramblings of his fraudulency the 2 nd. is aboslute as in “Shall Not Be Infringed”,as it has been since it was ratified.

Bigfootbob

Excellent article. “That was then. This is now” examples are perfect retorts to use with you know who in your circle of influence.

Another tool the leftards pull out of their pretzel logic toolbox is “Whataboutism’s” they use when comparing picadillo’s committed by opposing parties. All dimocRAT’s are mentally deficient.

Steve

And they DemonCrats are Soulless creatures, bereft of any conscience.

JayDubya

Excellent article, Dean. Unfortunately, most people who need to understand this will doubtfully ever read it.

Greg K

Not even being “restored”. They were there all along. They are being unencumbered.

Watch um

Wording, “such as” means there are other places besides “the home” for self-defense. We as citizens have a right to self-defense in public, not just our home. This article by Dean is one of the best so far and should be shouted out in every public place. 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. I never agreed with the false saying by law enforcement that said “serve and PROTECT” it is an… Read more »

Steve

I believe it was 1977 that the Supreme Court ruled that the Police are NOT there to protect us. (If my memory serves me right, there was a case in New Jersey involving a number of Coeds at Rutgers University). The SCOTUS ruled the real purpose of police forces is to keep public order, investigate crimes against citizens if called upon, and recover evidence to effect an arrest. After that, the state or municipality (the DAs) is to bring the accused to trial, convict or acquit the accused, and either imprison them or reinstate their assets.

Hazcat

Hear, Hear!

TNJEWBOY

Great piece. The bottom line is :

If we hand in our guns to the government either piecemeal or all at once what will protect us from the government?

Tionico

another part of the same government? Of COURSE……

CourageousLion

One reason to protect the right was to enable the creation of militias from the armed population.” ABSOLUTELY!!! And those first 13 words have been being ignored since 1903! WE NEED THE STATE MILITIAS back in force and effect for a number of reasons. https://www.lewrockwell.com/2022/08/mark-reynolds/those-forgotten-and-ignored-13-words/

Ope

@CL, great comment and link. I suggest everyone open that link and read it.

UncleT

Good read. However, I’d argue your God given / Natural rights can never be taken away, we just agree not to exercise them because of some tyrants unconstitutional edicts or law. Which, is suppose to be null in void if it violates the constitution. Remember, the Constitution is suppose to restrict or restrain the government not the people. We are failing the Constitution the constitution isn’t failing us. Be “vigilant” remember? Or the tyrants will enslave you.

Logician

OK ladies and gentlemen, here’s the ultimate undercut in facts and logic for ANY situation that you may find yourself in regarding the legal system. These are the indisputable facts about the legal system. No one yet has been able to prove any of them wrong to any degree. 1) It is 100% corrupted. Depending upon whom you are and how much wealth you may command, that will determine how you are treated by the legal system! 2) As is seen in the reversal of Roe v. Wade just last year, the legal system is totally incompetent, irrelevant, and immaterial… Read more »

CourageousLion

It also could be that the 14th amendment wasn’t being enforced at first because of the facts lying behind it’s so called ratification and the courts waited for a generation so that those who were disenfranchised by it’s so called ratification wouldn’t be around to question it and really, how many of US today know the following is the reason it is NOT a constitutional amendment! The purported 14th Amendment to the United States Constitution is and should be held to be ineffective, invalid, null, void and unconstitutional for the following reasons: 1. The Joint Resolution proposing said amendment was… Read more »

Tionico

The “that was then this is now”corruption is amazingly well laid out and illustrated. Main oint: the Constitution is a durable document… it lasts and cannot be changed except by a very long, complicated, and difficult process. And that is a feature not a bug. as to this: the Dread Scott decision in 1857 about the dangers of recognizing black people as citizens (bold added): the litigant’s given name is DRED not DREAD. Picky picky picky.. just like it is McDonald not Mac Donnald, etc. Easy miss. But I well remember studying this Decision in grade school probably 7th or… Read more »