Thursday, June 21, 2007

Constitution in Exile

Fourteenth and Second Amendments, in light of Article 1, Section 8, Clause 11: Letters of Marque and Reprisal.

The Second Amendment is simple, and breathtaking in its scope.

“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.”

As used in each of the amendments, “the people” is a term of art that indicates all citizens and legal, free residents. The people in the Second Amendment is the same term used in the First , Third and Fourth Amendments, and is reasonably construed to have the same meaning.
The Dred Scott decision, as delivered, turned on the SCOTUS understanding of the limitation of that term “the people” to residents who were not Negroes.

The Fourteenth Amendment was passed in response to the decision written by Judge Taney, on Dred Scott that stated that no Negro had standing in the United States. In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting (sic) slavery in all of the country's territories.
Dred Scott “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his (the white man’s) benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

It was this decision that revealed the failure of the policies of antislavery wing of the Whig party which relied upon the 1820 Missouri Compromise to limit slavery in Federal Territories. It was this decision, in the wake of conflict between pro-slavery and anti-slavery forces in Kansas, stated that even free states could not ban slavery. It was this decision that lead to the successful Republican effort to find a President who could add an amendment to limit human slavery to the states where it existed. The Missouri Compromise had three provisions.

  1. Missouri would be admitted as a Slave State.
  2. No further Slave states would be admitted north of the southern boundary of Missouri.
  3. Fugitive slaves captured anywhere in the United States would be surrendered by federal marshals upon demand by the owners (or their agents).

Though the Missouri Compromise was overturned, Missouri remained as a slave state, and the Fugitive Slave Law continued to be enforced. The only part that was overturned was the restriction of Slavery to existing Slave States and the Southern parts of Federal Territories.
The Missouri Compromise was modified by the Compromise of 1850 that had 5 provisions, that were enacted, two for the antislavery forces, two for the pro-slavery forces, and the 5th as a balance between the two.

  1. California was admitted as a Free State
  2. The Slave Trade (though not Slavery) was forbidden in Washington, D.C.
  3. New Mexico and Utah Territories were organized without prohibition of Slavery
  4. The Fugitive Slave Act expanded upon that of 1820, and required all US Citizens to assist in return of escaped slaves.
  5. Texas gave up title a great deal of western land to which it had good claim, but received 10 million dollars in compensation.

The Fugitive Slave Law continued to be enforced, even during the Civil War. This enforcement was necessary to keep the northern slave states (Missouri, Kentucky, Maryland and Delaware) in the Union. Even after the Emancipation Proclamation!

The Fourteenth Amendment was ratified by California on May 6th, 1959, and implicitly recognizes

  1. that States may wrongfully inhibit the liberty of their citizens or residents, and
  2. that it is a duty of the Federal government to assure that Civil Rights would be honored by states.

That was the experience of the Great Rebellion, where state governments not only asserted the right to leave the union, but also asserted the right to unilaterally set the terms upon which that separation would take place. Examples of their unilateral acts to set the terms of separation include:

  1. Rebellious States asserted their continued authority over US Citizens within their territory by enacting and enforcing conscription of US Citizens within their territory. Exemptions were granted to large plantation owners.
  2. Southern state militias attacked federal forces, to include Harper’s Ferry and Ft Sumter.
    Southern state militias, acting for the southern state, appropriated federal property.
  3. Southern state militias blocked navigation on Federal Waterways, to include the Mississippi River and Charleston Harbor.
  4. Southern state militias prevented the collection of Federal tariffs within and adjacent to their borders, even for merchants who were willing to pay tariff as necessary to penetrate the Federal Blockade.

Having lost political validation in the election of the President, rather than seek political validation in the legislature, and seeing no hope in legal validation in the Supreme Court, the rebel Southern States sought validation by force, and appealed to the sword. When the southern states lost, the last support of their position was lost with their armies. A condition of the restoration of rights for the rebel southern states was acceptance of the 14th Amendment.

The 14th Amendment clarified the words of Article 4., Section 4.

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. “

That was the section by which President Lincoln asserted his authority to maintain the perpetual union of the States, codified in the Articles of Confederation, that predated the Constitution.

The key provision of the 14th Amendment is in Section 1.:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This forbids States from depriving its citizens of rights, as well as privileges and immunities, and further assures “equal protection of the laws”. Just as a state can not circumvent the requirement for equal protection of laws by creating an arbitrary class of persons called “Negro” and enacting special reductions in their status, so the states can not create an arbitrary class of persons called “Ordinary Citizens ” and remove their rights. This is what California has done, by banning meaningful self defense to all citizens of several counties without police powers.
Now it must be admitted that if the 2nd Amendment provides an individual right to keep and bear arms, that the 14th Amendment forbids States from acts that would abridge that right. If a citizen is immune from laws infringing upon his duty (delineated in Title 10, section 311) to be prepared for militia service, then States may not abridge upon that immunity.

The next question is: To what extent does the individual right of the 2nd Amendment extend?

“In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

United States v. Miller, 307 U.S. 174 (1939). The term “not within judicial notice” is a term of art which implies that the facts may be what they are, but the evidence has not been presented and recorded. United States v. Miller suggests that it extends at least to the possession of weapons useful for militia service, holding constitutional a ban on sawed off shotguns in the absence of evidence that such weapons were useful for militia service. Such evidence could have been provided by testimony of many men, called up from the militia to federal service during WWI, who used sawed off shotguns as “trench brooms” in the severe close combat environment of that war. During Vietnam doctors were provided short shotguns to permit them to defend themselves and their patients from an enemy that did not respect the Red Cross. During Desert Storm, tank commanders used shotguns to remove enemy infantry from tank aft decks. During the present operations in Iraq short shotguns are used by combatants to breach locks on heavy doors, and special purpose breaching rounds are provided for that purpose. This long experience of use of shotguns, many with barrels shortened far beyond 18 inches suggests that competent defense would allow Miller’s presumption of non-utility to be overcome.

Presser v. Illinois, 116 U.S. 252, 264-66 (1886) [State law barred "any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the state"; the Court held:] The first [claim is based on] the second amendment, which declares: "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." We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms "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, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . ." . . . It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect. “

What is not known is whether a law forbidding the people from keeping arms, not just in cities and towns, but generally, would deprive the United States of their rightful resource for maintaining the public security.

Some assert that the right to keep and bear is limited to manually operated or self loading (confusingly called "semiautomatic") rifles, since once manually operated or semiautomatic rifles were individual weapons, and fully automatic rifles were reserved for crew served weapons. This is not factually correct. The famous M1918 Browning Automatic Rifle was a fully automatic weapon, but was not crew served, rather being issued during WWI, WWII, and Korea to one man per infantry squad in the Army and during WWII and Korea to one man per infantry fire team in the Marine Corps. As technology has improved, the fully automatic M-1 submachine gun, the M-3 submachine gun and the M2 Carbine are not crew served, and each of these were issued to individuals during WWII during the Korean War, and the fully automatic M-16, M16A1, as well as the burst fire M16A2 and burst fire M4 Carbine are issued to individual soldiers.

Since fully automatic assault rifles are provided to the Organized Militia (National Guard) when in State and Federal service, then presuming competent decision making on the part of the national military authorities, one can confidently state that fully automatic assault rifles are useful for militia service. This is backed up by legislative votes that authorize and appropriate funds to purchase fully automatic rifles, given their well known issue to individual soldiers. These fully automatic rifles are not crew served weapons, but rather individual weapons used in modern tactics to attack and defend, by individual soldiers.

Even Crew Served weapons may be useful to the Militia. Certainly infantry mortars (typically from 60mm to 120mm in diameter) are crew served weapons, because of the size and weight of the weapons themselves, and the weight and bulk associated with meaningful amounts of ammunition. Some anti-tank weapons, to include the LAW (Light Antitank Weapon) are issued as a round of ammunition, and carried and employed by individual soldiers, and correspondingly members of the National Guard. Others (such as TOW, Javelin, and Hellfire) are crew-served, and signed to the commanding officer and thence hand receipted down to Non-Commissioned Officers. National Guard units are provided with Armored Vehicles, with large cannon, and multiple automatic weapons. Members of the unorganized Militia members may be assigned to operate these weapons in the event that the Organized Militia is called to federal service. During the early days of WWII, local militias obtained artillery for local self defense by appropriating weapons that had previously been in front of various Post Offices. Certainly crew served antiaircraft weapons could have provided some useful local defense to the terrorist attacks of September 11th, 2001, if only they had been available to the occupants of the large buildings that were targets of that atrocity. Those who would ban crew served weapons, assent to continued similar attacks of American Citizens, as they perpetuate the inability of Citizens to protect themselves from evil, unless they announce the details of their “better plan”.

Certainly the rights to private ownership of one form of Crew Served Weapon is referenced in the Constitution itself: During the early Federal period, the contemporary wooden merchant ship, supplemented with weapons is a crew served weapon, able to transport itself by concerted efforts of a team of sailors to set the sails, and trim the rudder. Its weapons could have good effect only if private gun crews serviced their weapon as ordered by the gun officer, and trained its guns as commanded by the ship’s captain. The ship as a crew served weapon would be trained in peace for useful self defense on the high seas, or to have good effectiveness in time of war under Congressionally Granted Letters of Marque and Reprisal. The members of a ship’s company would train together during peace, as part of their normal occupation (as a merchant seaman) so that during war, the Congress could expand the effective naval force available. Such figures as John Paul Jones served as Privateers, sailing under authority of Letters of Marque and Reprisal. It should be noted that John Paul Jones did not wait to get his training until the United States had issued the LMR. Time is money, and LMR were paid for by the parties, and expected to make a profit. He, and much of his crew were already competent. Merchant Seaman at that time had to be ready to defend their ships cargo from violent non-governmental pirates as well as from government belligerents. In that respect that time was much like the present.

If the right of a citizen extends even to crew served weapons, as well as to individual weapons, then where is the limit of right, which may not be abridged by legislature, and where is the beginning of privilege, which may be governed by legislative law? Can an individual have legal access to chemical, biological and nuclear weapons, and if so, of what toxicity, and to how many kilotons?

Artillery and mortars are used by the active services, as well as the National Guard. As such, they would be available to members of the militia. Ammunition would be regulated just as ammunition storage for the active service and National Guard is stored carefully. Though artillery and mortars could be kept, the artillery for them could reasonably be controlled. Militia members would have to be expert in drawing ammunition from storage and returning unused ammunition to storage. Locations where artillery, mortars, or missiles could be fired would be controlled, just as these locations are carefully controlled in the active service. Training with dummy rounds would be uncontrolled, and training with and storage of sub-caliber practice devices would be controlled commensurate with the reduced lethality of such ammunition.
Chemical agents as weapons as now understood were first used by Imperial Germany during the First World War. Chlorine gas, followed by Phosgene and Mustard agents were used. Later National Socialist Germany developed Nerve agents, but did not routinely use them against combatants. Zyclon B was used in the extermination camps against non-combatants. US treaties and agreements have forbidden use of these weapons, and so no aspiring militia member need be expert in their use. These weapons would not be available for militia use.
Certainly nuclear weapons are beyond the means of all but the most unusually wealthy individuals. Nuclear weapons were first developed by the United States Government, and used during WWII. They have since only been developed by government actors. In the United States, access and information on them is highly classified, and by stripping special access clearance from any person not employed, the right to access to nuclear weapons is well controlled. That would not change. Nuclear weapons manufactured abroad and imported would be subject to a substantial duty, and this duty or tariff could easily be made so large as to practically prevent them from importation.

Update: Vin Suprnowicz also points out the link between the second and 14th amendment in a current issue of Shotgun News.

Hat tip to Tam from View From the Porch at


US Constitution
Second Amendment to US Constitution
Fourteenth Amendment to US constitution
Article XIV.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Proposal and Ratification
The fourteenth amendment to the Constitution of the United States was proposed to the legislatures of the several States by the Thirty-ninth Congress, on the 13th of June, 1866. It was declared, in a certificate of the Secretary of State dated July 28, 1868 to have been ratified by the legislatures of 28 of the 37 States. The dates of ratification were: Connecticut, June 25, 1866; New Hampshire, July 6, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (subsequently the legislature rescinded its ratification, and on March 24, 1868, readopted its resolution of rescission over the Governor's veto, and on Nov. 12, 1980, expressed support for the amendment); Oregon, September 19, 1866 (and rescinded its ratification on October 15, 1868); Vermont, October 30, 1866; Ohio, January 4, 1867 (and rescinded its ratification on January 15, 1868); New York, January 10, 1867; Kansas, January 11, 1867; Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Minnesota, January 16, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 25, 1867; Rhode Island, February 7, 1867; Wisconsin, February 7, 1867; Pennsylvania, February 12, 1867; Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 16, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 4, 1868 (after having rejected it on December 14, 1866); Louisiana, July 9, 1868 (after having rejected it on February 6, 1867); South Carolina, July 9, 1868 (after having rejected it on December 20, 1866). Ratification was completed on July 9, 1868.

The amendment was subsequently ratified by Alabama, July 13, 1868; Georgia, July 21, 1868 (after having rejected it on November 9, 1866); Virginia, October 8, 1869 (after having rejected it on January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (after having rejected it on October 27, 1866); Delaware, February 12, 1901 (after having rejected it on February 8, 1867); Maryland, April 4, 1959 (after having rejected it on March 23, 1867); California, May 6, 1959; Kentucky, March 18, 1976 (after having rejected it on January 8, 1867).


Post a Comment

Subscribe to Post Comments [Atom]

<< Home