[117691] in Cypherpunks
We don't need no steenking 2nd Amendment
daemon@ATHENA.MIT.EDU (Robert Hettinga)
Wed Sep 8 23:55:01 1999
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Date: Wed, 8 Sep 1999 23:12:06 -0400
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From: Robert Hettinga <rah@shipwright.com>
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Date: Wed, 8 Sep 1999 14:38:04 -0700
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From: <Somebody>
Subject: We don't need no steenking 2nd Amendment
<x-flowed>
http://www.self-reliance.com/articles/silveira58.html
We don't need no steenking 2nd Amendment
by John Silveira
usually get up to the magazine from southern California in plenty of
time for the bimonthly deadline. Not this issue. I was late and way
behind. But getting up here late doesn't lessen my workload; it just
stretches out the number of hours I have to work each day. There's
less time to relax, visit, or spend with friends. That said, three of
us, Dave Duffy, O.E. MacDougal, and I went shooting anyway and
depreciated a huge amount of ammunition on a hillside up behind
Duffy's house. Duffy, of course, is the fellow who publishes this
magazine.
Mac is Dave's poker-playing friend from the old days.
After a hard day of knocking down cans and collecting brass, we got
back to the office and discovered that Dave's old college buddy,
Bill, had stopped by. Dave and Bill began talking about old times,
but the phone rang and took Dave out of the conversation.
I, in the meantime, had disassembled my rifle and there were pieces
in my lap and some on my desk. Mac was off in the corner reading a
copy of the last issue of BHM.
"What are you doing with that?" Bill asked.
I looked up. He was talking to me.
I looked down in my lap at the gun parts I had there. "I'm cleaning
it," I said.
"What do you need it for?" he asked.
"I don't usually clean them but..."
"No, not why do you need to clean it, why do you need a gun?"
"Why do I need it?"
"Yes."
"I want it," I said.
"But why do you need one?" he persisted.
"Need one?" I asked again, not understanding his question. "I don't
follow you."
"How many guns do you have?"
"You mean 'own' or how many did I bring up with me?"
My question seemed to put him off.
"How many do you own?" he asked in a voice that was tinged with
exasperation. "How many guns do you have here, there, and
everywhere?"
I thought a minute. "About a dozen."
He screwed up his face. "What do you need 12 guns for? If you need a
gun, one should be enough."
"Enough for what?"
"What do you need a gun for?"
The meaning of the 2nd Amendment
He was back to that. "I don't know where this is going. I don't even
understand your question," I said. "I don't have to need a gun to own
one any more than I need a CD player or a couch to own one of those.
The 2nd Amendment says I can have them. It doesn't say I have
to show a need and it doesn't limit the number I can own."
Bill shook his head. "So, you're one of those."
Dave finished his call and turned to us as he hung up and said,
"Bill, what do you mean by needing a gun?"
"The 2nd Amendment isn't about you guys owning guns," Bill said.
"It's about the state having guns. It says you're only allowed guns if
you're part of the militia and I don't see any of you guys with
uniforms. The 2nd Amendment is about the National Guard."
"I don't think that's what it means," Dave said.
"It says it right in the amendment. It's for the militia. You can
even ask Mac," he said and pumped his thumb back to the corner where
Mac was quietly reading. "I'll bet even he agrees with me."
I think Bill was baiting Mac. He and Mac had had a lively discussion
about our rights the last time Bill was here about two years ago
(Issue No. 44 March/April 1997). But Mac didn't look up. He just kept reading.
Dave got out of his seat and pulled down the almanac from the
bookcase and flipped through the pages.
Then he began to read, "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."
"See," Bill said. "It's about having a well regulated militia.
Militia-that's military. It's not about you."
"Well, a whole bunch of people think it's about individual gun
ownership," Dave said.
"But it's not. Read the amendment again. It's about the militia. It's
only you gun nuts who think it's about you."
I shrugged. The wording of the 2nd Amendment has always bothered me.
But Dave looked off into the corner to where Mac was still reading.
"What do you think?" he asked.
Mac just looked at us and smiled, then went back to his magazine.
"See," Bill said. "Even he knows it's about the National Guard, not you guys."
"The National Guard didn't exist when the 2nd Amendment was written.
It came into existence over a century later," Mac said without
looking up and he continued to read.
"What?" Dave asked.
"I said the 2nd Amendment isn't about the National Guard. The Bill of
Rights was adopted in 1791. The act that created the National
Guard wasn't enacted until 1903."
"Well, you know what I mean," Bill said. "It's to allow the states to
have state police and things like that."
Mac continued to read.
"Is that true?" I asked.
Mac looked up when he realized I was talking to him.
"You mean was it for the state police and such?" he asked me.
"Yes," I replied.
"No."
Bill smiled. "Mac, it says right there in black and white-Dave just
read it to us-that it's to ensure we have a well regulated militia."
I looked expectantly to Mac who seemed to be getting impatient
because he really was trying to read. "Could you give us a little
input into
this?" I asked him.
"I can tell you that when the Founding Fathers used the word militia,
it meant something different to them than what it means to us now,"
and he continued reading.
"Is that all you've got to say?" I asked.
He looked at me, then back at his magazine. He knew we weren't going
to let him stay out of this and he reluctantly closed it.
What is the militia?
Now that I had him I asked, "What's this about how the guys who
founded this country used the word militia?"
"You've got to understand what the militia is," he said. "In May of
1792, five months after the adoption of the 2nd Amendment, the Militia
Act was passed. That act distinguished between the enrolled militia
and the organized militia. Before the passing of that act, there was
only the enrolled militia, which was the body of all able-bodied men
between the ages of 17 and 44, inclusively, and it is that militia to
which the 2nd Amendment refers. It couldn't refer to the organized
militia because it didn't exist yet. The 2nd Amendment was to ensure
that this body of citizens is armed and that's why the Founding
Fathers thought to place it in the Bill of Rights. Legally, both
militias still
exist."
"Are you saying I'm in some militia?" Bill asked derisively.
"By law, you were. I would guess that, by now, you're over that age."
"So, you're also saying only people between 17 and 44 are allowed guns, right?"
"No," Mac replied. "That's just the ages of the body of men
constituting the militia. The amendment says the people can both keep
and
bear arms. It's usually been construed to mean all the people."
"I don't believe you."
Mac shrugged, reopened his magazine and resumed reading.
"What don't you believe?" I asked.
"Anything. First, I don't believe that I'm part of any militia or
ever was. Second, I don't believe that the 2nd Amendment refers to the
people at large and not the army or some other state or federal organization."
"I still don't get this thing about the organized and the enrolled
militia?" Dave said.
Mac put the magazine down again. He shook his head and muttered
something about fishing in Alaska from now on. He got up out of
his chair and walked out the door. Through the window we could see
him in the parking lot fishing around in the trunk of his car until he
finally pulled something out. It was a tattered black briefcase. He
carried it back into the office and put it on the desk next to his
magazine. He opened the briefcase and took out a sheaf of papers and
fanned through them.
"I was looking up some stuff on the 2nd Amendment for a lawyer friend
I play poker with down south," he said, meaning southern
California, "and I still have some of the papers."
He stopped fanning them.
"Here are copies of the Militia Act," he said and held them out to
Bill. "They explain what the militia meant to the Founding Fathers.
They
also show that the 2nd Amendment came before Federal law created the
organized militia and provide evidence that what they referred
to as the enrolled militia-the body of citizens-were allowed to arm
themselves."
Bill waved them away. "All that happened 200 years ago," Bill said.
"Militia means something else today. It means the military."
"No, the law hasn't changed," Mac said. "But even if we decide the
word means something new to us, you can't use the new definition to
change the intent of the Amendment."
"That's your opinion and you're entitled to it. But times have
changed and we need new interpretations of the words and of the
Constitution."
"It's not just my opinion," Mac said. "The Supreme Court has ruled
that the words in the Constitution mean what the Founding Fathers
said they meant, and we can't go changing or amending the
Constitution by giving new meanings or new shades of meaning to the
words. And, if you think about it, it makes sense; otherwise, our
rights really mean nothing. Congress or any other governing body can
deny you the right to free speech, freedom of religion, a trial by
jury, or whatever else it wanted just by claiming the words now have a
new meaning. An oppressive government could change the Constitution
without ever having to go through the bothersome ritual of
submitting it to us, the people, for our approval. And, in the end,
the Constitution and, in particular, the Bill of Rights are there for
our
protection, not for the benefit of the government or those who run it."
"Well, I don't buy into these definitions you have of militia and
such," Bill said. "I don't believe the 2nd Amendment gives John or
anyone
else the right to privately own guns. I think your interpretation is
just a well-presented opinion and that the 2nd Amendment really refers
to the powers given to the states."
Why we don't need the 2nd Amendment
Mac shrugged. "That's okay. Even if you're right and the 2nd
Amendment refers only to the National Guard, the state police, or some
other uniformed military or police organization we'd still have the
right to keep and bear arms. We don't need the 2nd Amendment."
"What?" Bill yipped. "If the 2nd Amendment is about the states, and
not the individual, you don't have the right to own guns."
"Yes we do," Mac said.
"Wait a minute," Dave said, "How do you figure we'd still have the
right to have guns? Without the 2nd Amendment we're lost."
Bill was laughing, "Yeah, how do you come up with that?"
"Because the Founding Fathers believed we had that right. They spoke
about it and wrote about it. And that's enough."
Bill laughed harder. "That'll look good in court: 'I can carry a gun
because some guy who's been dead for 200 years said I can. Here, let
me show you the note he gave me. It's in the form of a permission
slip. Can I get a hall pass, too?'"
Dave laughed at what Bill said, but Mac didn't seem in the least perturbed.
"I think Dave and Bill are right," I said. "The whole question of gun
rights hinges on what the 2nd Amendment means. If it means the right
to bear arms belongs to the states, then it means you and I don't
have any right to individual gun ownership."
"Well, let's start with this," Mac said. "Can you find anything in
the 2nd Amendment, or any other part of the Constitution, that says
the
individual can't have arms?"
"What's that got to do with it?" Bill asked.
"That's not an answer. Just keep in mind my question is not whether
you think the Constitution allows individuals to carry guns but
whether or not there's anything in it that says they can't?
"Anyone can answer it, but the question is really directed at Bill."
There was a long pause while we all thought about that. I don't know
where Mac was taking this, but it smelled suspiciously like a trap
and I'm sure Bill felt that way, too.
Mac waited patiently.
"I don't think so," Dave finally said.
I agreed, too, but Bill still didn't say anything.
Natural Rights
"And do you also understand that the Bill of Rights is not the source
of our rights. It's not even a complete list of our rights."
"What are you talking about?" I asked.
"Mac's losing it," Bill said and threw his arms up.
"I'm asking you if you understand that we do not get our rights from
the Bill of Rights."
"Of course we do," Bill said. "That's why they wrote the Bill of Rights."
"I've got to agree with Bill," I said.
Dave said nothing. He seemed to be thinking.
"I'm saying this because the Founding Fathers did not believe we got
our rights from the Bill of Rights. Nor did they believe they came
about as a result of being American, Christian, of European decent,
or white. They believed everyone had these rights even if they lived
in Europe, China, or the moon. They called them Natural Rights. Where
these rights were not allowed, they believed they still existed but
were denied."
"You should be writing fiction," Bill said.
"Well, it's a question as to whether or not our rights exist apart
from government," Mac said. "Let me ask you this," he said to Bill.
"In a
country where children have no civil rights, do they still have a
right not to be molested? Do women in countries where they have a
second-citizen status have the right not to be abused by their
husbands, even if the government won't protect them?"
Bill didn't answer.
"Then is it too much of a stretch for you to understand that the
Founding Fathers believed everyone has the right to free speech,
freedom of religion, the right to fair trials...?" His voice trailed off.
Bill still wouldn't answer.
"In other words," Dave said, "it's a question as to whether the
rights of the citizens in China are at the pleasure of the government
or if
they have them but are being denied, or if the Jews had basic human
rights in Germany even if Hitler didn't let them exercise them?"
"Yes. All I want to know is if that's hard for you to see." He looked
at Bill who was still silent.
"Then I see what you're saying," Dave said, "But I'm not sure how it
relates to the 2nd Amendment."
Bill still said nothing-but neither did I.
"Take it a step further. If the government passed a law tomorrow that
said we didn't have the right to free speech, or the right to free
worship, or freedom of the press, would those rights no longer exist,
or would they be simply denied? If the Constitution is amended
depriving us of our rights, do those rights cease to exist?"
"What's the answer?" Dave asked Mac.
"The answer, according to the guys who set up this country, is yes,
we would still have those rights. We're just being denied them.
Because of that, it's the way we have to look at the Constitution."
Bill rubbed his nose.
Dave said, "Okay, I never thought of it that way, but I'll buy into
it for a moment."
"It may be," Mac said, "that in reality, rights are a figment of our
imagination. But the Founding Fathers believed they existed and that's
how this country was set up. Rights are something that come with
being human. The Founders never believed we got them from the
government. If and when the United States goes away, the rights will
still be there."
Why a Bill of Rights?
"Then why have a Bill of Rights?" Bill asked. The question was posed
as a challenge.
"You're not the first person to ask that. Men like Alexander Hamilton
asked it. He and many others thought having a Bill of rights was
dangerous."
"Dangerous," Bill laughed. "How could it be dangerous?"
"They were afraid that the existence of a Bill of Rights as a part of
our Constitution implied that the government not only had the right to
change them, but that any rights not listed there were fair game for
the government to deny. And, as a matter of fact, that's exactly what
has happened. The government seems to have set itself up to be an
interpreter of our rights; it acts as if it is also the source of our
rights, and whatever rights weren't mentioned in the Bill of Rights,
the government has seen fit to declare exist only at its discretion."
"Then how do we know what our rights are in court?" Bill asked.
"Have you ever read the Bill of Rights?" Mac asked. I think he was
tired; there was no humor in his voice.
"Specifically, have you ever read the 9th and 10th Amendments?"
Bill smiled and shook his head. "I never thought it was important to
memorize them."
"It's important to understand what they say and know why they are
written the way they are because they tie in with how the Founding
Fathers viewed our rights and how they expected us to view them.
"They were put there to quell the fears of men like Hamilton who were
afraid that any rights not mentioned in the Bill of Rights would be
usurped by the government. The 9th says:
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
"This means that any rights not mentioned in the Bill of Rights are
not to be denied to the people.
"The 10th says:
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
"So any powers not specifically given to the Federal government are
not powers it can usurp.
"So it's enough to show the Founding Fathers thought we had a right
for it to fall under the protection of the 9th or 10th Amendment.
This means that the Founders didn't even have to specify we have the
right to free speech, religion, jury trials, or anything else. To
understand what they felt our rights were, all you had to do was show
what they said our rights are. Any rights in the first eight
Amendments are just redundant with what the Founding Fathers
considered Natural Rights.
Bill rolled his eyes.
"Then why do we have a Bill of Rights?" I asked.
"Because even though Hamilton and others feared having one, most of
the Founding Fathers were sure that without one the
government would eventually take all of our rights."
"Just getting off the gun issue for the moment," Dave quickly asked,
"are there actually rights not mentioned in the Constitution that
you'd
say we've been denied?"
"Sure. The Founding Fathers felt we had a right to unrestricted
travel. So, now we have driver's licenses, automobile registrations,
and
passports. They also felt we had property rights, so Civil Forfeiture
or Civil Seizure laws, now exercised by the Feds and the states, are
actually illegal under both the 9th and 10th Amendment.
"And," he continued, "if the Congress or even the Supreme Court
decides the 2nd Amendment only refers to formal military
organizations,
we still have the right to keep and bear arms, because the Founding
Fathers considered it a natural right. And if you don't believe it,
read
what the Founding Fathers said in their papers, their letters, and
their debates in both Congress and the state legislatures."
He pulled more papers from his briefcase and started going through them.
"You know," he said, "weapons have always been important. In Greece,
Rome, and even under Anglo-Saxon law, when slaves were
freed, part of the ceremony included placing a weapon in the man's
hand. It was symbolic of the man's new rank."
What the Founders said
He paused as he looked through the papers. "Here's one, and I quote:
Arms in the hands of individual citizens may be used at
individual discretion...in private self-defense.
"That was said by John Adams in A Defense Of The Constitution.
"Here's another one:
The Constitution shall never be construed to prevent the
people of the United States who are peaceable citizens from
keeping their own arms.
"That was said by Samuel Adams, John Adams' second or third cousin,
during Massachusetts' U.S. Constitution ratification convention in
1788."
"This is all bull," Bill said.
Mac looked up, then he started to put the papers back in the briefcase.
"No, I want to hear more of this," Dave said. "What else have you got
there?" Dave asked, and Mac began going through the papers
again.
"If you really want to hear what they had to say, here are a few by Jefferson:
The strongest reason for the people to retain the right to
keep and bear arms is, as a last resort, to protect themselves
against tyranny in Government.
"And here's another by him:
No free man shall ever be debarred the use of arms.
"He wrote this as part of the proposed Virginia Constitution, in 1776.
Personal protection
"And here's one more. It's Jefferson quoting Cesare Beccaria-a
Milanese criminologist whom he admired who was also his
contemporary-in On Crimes and Punishment:
Laws that forbid the carrying of arms...disarm only those who
are neither inclined nor determined to commit
crimes...Such laws make things worse for the assaulted and
better for the assailants; they serve rather to encourage
than to prevent homicides, for an unarmed man may be attacked
with greater confidence than an armed man.
"I think it's pretty clear that Jefferson felt we had the right to
keep and bear arms for both personal protection and as a safeguard
against
tyranny."
Bill went and poured himself some coffee and acted, for all the
world, as if he wasn't listening anymore.
Mac shuffled through a few more papers. "Here's one by Thomas Paine
that comes from his Thoughts On Defensive War written in 1775:
Arms discourage and keep the invader and plunderer in awe, and
preserve order in the world as well as property. Horrid
mischief would ensue were the law-abiding deprived of the use of them.
"And here's one from Georgy Boy:
Firearms stand next in importance to the Constitution itself.
They are the American people's liberty teeth and keystone
under independence. From the hour the Pilgrims landed, to the
present day, events, occurrences, and tendencies
prove that to ensure peace, security and happiness, the rifle
and pistol are equally indispensable. The very atmosphere
of firearms everywhere restrains evil interference-they
deserve a place of honor with all that's good.
"Who's Georgy Boy?" I asked.
"George Washington. That was from a speech he made to Congress on..."
He looked at the paper again. "...January 7, 1790.
"But that's not the only quote from him. In response to a proposal
for gun registration he said:
Absolutely not. If the people are armed and the federalists do
not know where the arms are, there can never be an
oppressive government.
"I think that's pretty clear." He lowered the pages and looked at Dave. "More?"
"Do you have more?"
He went through more of his papers. "Here's one of my favorites:
To disarm the people; that it was the best and most effectual
way to enslave them.
"That was by George Mason when the Constitution was being debated."
"And who, may I ask, was George Mason?" Bill asked. "It sounds like
you're bringing in the second string now."
"He's the most underrated and unsung of all the Founding Fathers.
Jefferson drew on him when composing the Declaration of
Independence; his doctrine of inalienable rights was not only the
basis for the Virginia Bill of Rights in 1776, but other states used
them
as the models for their own Bill of Rights, and James Madison drew
upon them freely while composing the Bill of Rights for the United
States.
"Even though a Southerner, Mason recognized the evils of slavery and
the fact that slaves were entitled to the same rights as the rest of
humanity. He also feared the Constitution because it didn't do a
better job of limiting the powers of the Federal government. He
believed
local government should be strong and the Federal government kept
weak. He firmly believed in the power, the rights, and the integrity
of
the individual."
"Never heard of him," Bill said.
"I'm not surprised. But you're not alone because most people haven't."
"Why's that?" Dave asked.
"He suffered bad health and had all kinds of family problems, so he
never attained any office outside of Virginia-other than his
membership to the Constitutional Convention in Philadelphia. But he
was the most vocal of the Founders on individual rights, and the
other Founding Fathers recognized him as a force to be reckoned with.
Without him, I can guarantee you that the United States would
not be as free as it is now.
"You guys should do an article on him," he said to Dave.
Dave quickly wrote something on his notepad, then glanced at me.
Defense against tyranny
Mac continued to go through his papers. "Here's a quote by Elbridge
Gerry, a representative to Congress from Massachusetts during the
debates over the Bill of Rights. He's also the man for whom
gerrymandering is named because, as governor of Massachusetts, he
tried to
rig districts to favor his party. In this quote he was specifically
referring to what we now call the 2nd Amendment:
What, Sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty...Whenever
Governments mean to invade the rights and liberties of the
people, they always attempt to destroy the militia, in order to
raise an army upon their ruins.
"That should also give you insight as to how the Founders defined the
militia and why they thought it was important."
"Okay, I've heard enough," Bill said.
"Me too," Dave added.
"There's one more," Mac said. "It's kind of a long one, but it's by
James Madison, the guy who wrote the Constitution and actually put
together the Bill of Rights. "
"Okay, go ahead," Dave said.
The highest number to which a standing army can be carried in
any country does not exceed one hundredth part of the
souls, or one twenty-fifth part of the number able to bear
arms. This portion would not yield, in the United States, an
army of more than twenty-five or thirty thousand men. To these
would be opposed a militia amounting to near half a
million 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. Besides the
advantage of being armed, it forms a barrier against the
enterprises of ambition, more insurmountable than any which a
simple government of any form can admit of. The governments of
Europe are afraid to trust the people with arms. If they
did, the people would surely shake off the yoke of tyranny, as
America did. Let us not insult the free and gallant citizens
of America with the suspicion that they would be less able to
defend the rights of which they would be in actual
possession than the debased subjects of arbitrary power would
be to rescue theirs from the hands of their oppressors.
"I kind of like that one," Dave said.
"So do I," Mac said.
"I've got more, but I think that's enough. But I think you can see
how the Founding Fathers felt about the right of individuals to have
weapons. In fact, this whole debate over the right to arms is a
recent one. In the last century, Americans would have been as amazed
to
find their right to have weapons a subject of debate as they would to
have found their right to free speech or religion debated. There was
no question to them, or to the Founders, that the right to keep and
bear arms was one of the most fundamental-perhaps the most
fundamental-of all civil rights."
"Are any of the Founders on record saying they don't believe
individuals should have guns?" Dave asked.
"None I know of-and I've actually looked for some.
"Do you know of any, Bill?" he asked.
Bill didn't reply. Again, I thought he was acting as if he wasn't listening.
The phone rang again and someone called across the office to tell
Dave it was an advertiser, so he took the call.
Mac put his papers back into the briefcase and picked up his magazine
and started to look for his place.Bill had even lost interest in the
conversation. And it was time for me to get back to work. As I said,
I was way behind. I took a last look at the gun parts to ensure they
were clean, and I began to reassemble the rifle.
But I turned back to Mac for a moment and asked, "The lawyer friend
you found this information for...were you giving him legal advice,
doing research for him, or what?"
"I was winning a bet," he said.
"What were the stakes?"
"A six-pack of beer."
"That seems like a paltry sum to have gone through all this research for."
"We're going to drink it in Florida," he said.
"Oh," I replied and continued to reassemble the gun.
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--- end forwarded text
-----------------
Robert A. Hettinga <mailto: rah@ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
-- US Constitution, 11th Ammendment
