www.lewrockwell.com/suprynowicz/suprynowicz38.html'The Unlimited Power of the Sword'
by Vin Suprynowicz
A couple of loyal readers asked me, in response to my recent evisceration of the discredited "militia clause" argument, "But Vin, do you think the Founders would have written the Second Amendment that way if they'd known we'd have Uzis"?
Leaving aside the fact that it takes extraordinary dedication and commitment (and loot) for a "civilian" of average means to legally acquire a fully automatic Israeli machine pistol in America today, the answer is, "Yes."
The Founders had every opportunity to add "except for bombs, mortars, artillery and other devices that can kill more than one person at a time" – all of which were well-known by 1787. They did not. Quite to the contrary, Tench Coxe, noted federalist and friend of James Madison, wrote in defense of the proposed Constitution, in the Pennsylvania Gazette of Feb. 20, 1788: "Their swords, and every other terrible instrument of the soldier, are the birth right of an American. ... The unlimited power of the sword is not in the hands of either the federal or the state governments, but, where I trust in God it will ever remain, in the hands of the people."
Note "unlimited." Note "every terrible instrument."
Under the form of government that we're told Americans still enjoy, the government can exercise only those powers that are delegated to it by the people. You cannot delegate a right or power that you do not already possess. Therefore, if members of the U.S. Army have legitimate authority to "keep and bear" Uzis and nuclear weapons, they can only have gotten that right from the individual Americans who delegated it to them.
It doesn't matter whether you "think this is a good idea." If you want to contend we now have a form of government in which our rulers start with all rights and powers, and allow to the peasantry only those lesser included liberties as they see fit, say so out loud now, please. And tell me when the original Constitution was voided, and by what legal process.
Nor do we usually or necessarily abdicate a right when we delegate it: We delegate to police the duty to chase down fleeing felons, but each citizen retains the right to go ahead and do this himself if circumstances dictate.
Similarly, the Second and 14th amendments guarantee that we have not given up our private, individual right to keep and bear howitzers and really big machine guns just because we have also delegated this right to the Army.
Of particular interest is the fact that several of my questioners work in the newspaper business. How would they respond, I wonder, to the proposition that the First Amendment protects only the freedom to use old-fashioned hand presses – that the Founders can't possibly have meant to authorize unrestricted use of today's far more dangerous, high-speed electrical presses, with their ability to spread lies and seditious, anti-government propaganda hundreds of times faster than Ben Franklin or James Madison could ever have imagined?
Speaking of my (necessarily brief) summary of the inquiries that have gutted the tired old "militia clause" arguments, noted Alabama constitutional attorney Larry Becraft writes in:
"Vin, You did not mention:
www.usdoj.gov/olc/secondamendment2.htm."
Frankly, I'm cautious about using Department of Justice filings, because they're inherently political and could easily shift under some future Hillaryesque administration. Nonetheless, Larry does offer up an official DOJ memorandum of opinion, dated Aug. 24, 2004, which finds:
"The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias. ... As developed in the analysis below, we conclude that the Second Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those persons who serve in organized militia units.
"The Amendment's prefatory clause, considered under proper rules of interpretation, could not negate the individual right recognized in the clear language of the operative clause. In any event, the prefatory clause – particularly its reference to the 'Militia,' which was understood at the Founding to encompass all able-bodied male citizens, who were required to be enrolled for service – is fully consistent with an individual-right reading of the operative language."
December 30, 2005
Vin Suprynowicz [send him mail] is assistant editorial page editor of the daily Las Vegas Review-Journal and author of The Black Arrow.
Copyright © 2005 Vin Suprynowicz
