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2nd Amendment: “The Right”

"The right of the people to keep and bear Arms” is as well both a “privilege” and an “immunity” in the strict legal senses of those terms.

Constitutional Militia
By Constitutional Militia
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Last Updated on January 16, 2023 by Constitutional Militia

2nd Amendment: “the Right”

The Second Amendment secures to each individual “the right to keep and bear Arms”, not just for his own benefit, but primarily for the benefit of everyone else. “[T]he right to keep and bear Arms”, translated through the duty “to keep and bear Arms”, emphasizes the obligation of each and every member of “the people”, not only to himself, but also to his community.

“The Right * * * to Keep and Bear Arms”: Constitutional Meaning

When they ratified the original Constitution and the Bill of Rights, WE THE PEOPLE knew—most of them from personal experience—that the substance of “the right * * * to keep and bear Arms” was to be found in America’s pre-constitutional Militia statutes in that pattern of behavior relative to firearms that had proven itself necessary for the formation and maintenance of “well regulated Militia” throughout this country’s history. In particular, the requirement that every adult able-bodied free White male (not a conscientious objector or otherwise specially exempted) should always maintain personal possession in his own home of at least one firearm and ammunition suitable for Militia service (“keep * * * Arms”), and be ready to bring that equipment into the field whenever called forth to duty (“bear Arms”).

In order to secure for themselves the permanent benefits of “the right * * * to keep and bear Arms” as Americans had always understood and applied it, THE PEOPLE knew that they had to render its meaning, as well as the meanings of “[a] well regulated Militia” and “a free State”, utterly independent of and immune from misconstruction and manipulation by anyone and everyone in public office in both the General Government and the governments of the several States as well—because “the right of the people to keep and bear Arms” (not any discretionary power of public officials) made “[a] well regulated Militia” possible, and therefore formed the foundation for “the security of a free State”. If “the right” were merely “a right” the substance of which Congress or the States’ legislatures determined, those bodies could never “infringe[ ]” it, because its very definition would depend entirely upon legislators’ discretion, or the prodding of factions and other private special-interest groups. And then even the meanings of “[a] well regulated Militia” and “a free State” could be transmogrified at the will of whomever happened to hold public office. To forefend this possibility, THE PEOPLE declared that “the right * * * shall not be infringed”, without any limitation as to whom that prohibition extended, or any allowance for purportedly special circumstances under which it might be deemed to be inoperative, or especially any license for anyone to redefine “the right” so that it could effectively be denied through verbal legerdemain. Thus, in one fell swoop, the Second Amendment preëmptively snatched from the rhetorical armamentarium of false judges the perverse modern doctrines of “reasonable regulation”, “compelling governmental interests” and “least-restrictive alternatives”, and “the living Constitution” where “the right * * * to keep and bear Arms” is concerned.

“[T]he right * * * to keep and bear Arms” (Second Amendment)

The meaning of “the right * * * to keep and bear Arms” has been made far more complex, confusing, and controversial than it really is.

(1) “[T]he right”. A “right” can be defined most generally as “[a] legal relation between two persons” that entails “[a]n enforceable claim [by one] to performance (action or forbearance) by another”.[1] As opposed to the amorphous term “a right”, which often leaves to speculation exactly whom the parties to and what the anticipated performance of a “legal relation” may be, “the right” as the Second Amendment employs that term implies “[a]n enforceable claim” (or, more descriptive of the actual complexity of the situation, “claim[s]”) the specific parties to and the content, extent, and effect of which are so well understood in context that they require no elaborate explicit definition.

(2) The subjects and substance of “the right”. The subjects of “the right” fall into two obvious classes:

(i) the parties whose freedom of action with respect to “Arms” and to participation in “well regulated Militia” it protects—namely, “the people”; and

(ii) the parties whose freedom of action in regard to those particulars it constrains—namely, in most cases rogue public officials, but potentially anyone whose aberrant behavior might “infringe[ upon]” “the people[’s]” freedom.[2]

Footnotes:

1.) Arthur L. Corbin, “Legal Analysis and Terminology”, 29 Yale Law Journal 167 (1919).

2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1386-1398.

The Second Amendment is recognizing a  personal constitutional “duty”. Besides being “the right” of each and every individual counted among “the people”, the constitutional relationship of Americans to “Arms” also sounds in a personal duty. When a Militia is “well regulated” by statute as the Constitution requires, everyone among “the people”, not properly exempted, must “keep and bear Arms” suitable for his particular service, or be subject to some punishment.[1] Indeed, because a fully armed citizenry is necessary for “[a] well regulated Militia” and “[a] well regulated Militia” is “necessary to the security of a free State”, the primary constitutional right should be framed as the right of each constituent of “the people”to fulfill his duty “to keep and bear Arms” in order to be capable of serving in the Militia. If such a statute has not been enacted, the duty has not been perfected. Nonetheless, everyone among “the people” is liable or exposed to the creation of the duty through some future exercise of legislative authority.[2] And everyone has a political and moral duty to press for enactment of such a statute, and in the interim to take appropriate direct action, such as by arming himself through the free market.[3]

Footnotes:

1.) Arthur L. Corbin, “Legal Analysis and Terminology”, 29 Yale Law Journal 167 (1919).

2.) See id. at 169-170.

3.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1331.

Inasmuch as neither the original Constitution nor the Second Amendment defined the term “Militia”, its meaning must be drawn from the great mass of pre-constitutional Colonial and State Militia statutes. A salient principle of these statutes was that every member of “the body of the people” was a member of the Militia, and every member of the Militia, not specially exempted for some good and sufficient reason supportive of the common defense and the general welfare, was required at all times to possess in his own home at least one firearm, ammunition, and necessary accoutrements suitable for Militia service (“to keep * * * Arms”), and whenever necessary to bring forth that equipment into the field (“to * * * bear Arms”). Thus, what the Second Amendment later described as “the right of the people to keep and bear Arms” was first and foremost a duty. Yet it was a right as well—because, if an individual has a duty of citizenship, embodied in law, “to keep and bear Arms”, he must as well have a corresponding right to do so, protected against any interference not only from rogue public officials but also from other private citizens.[1]

Footnotes:

1.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1332.

When the Constitution incorporated into its federal structure “the Militia of the several States” just as they existed at that time,[1] this explicit statutory duty and implicit statutory right became a constitutional duty and right, respectively. The first clause in the Second Amendment focuses on the locus of the duty (service in “[a] well regulated Militia”) and the second clause on the right instrumental thereto (“to keep * * * and bear Arms”). “[T]he right of the people to keep and bear Arms” is simply the constitutional guarantee that “the people” can freely engage in the behavior that conduces to the presence, at all times, of “[a] well regulated Militia” in each State—namely, the personal possession in his own home by every adult able-bodied individual (not a conscientious objector) of at least one firearm and ammunition suitable for Militia service. The purpose of “the right” is to guarantee that all of “the people” possibly eligible for the Militia will always be able to fulfill their duty to serve. And inasmuch as the duty to serve in the Militia necessarily includes a duty “to keep and bear Arms” (for all but conscientious objectors), “the right to keep and bear Arms” is inseparable from—indeed, is the mirror image of— the duty “to keep and bear Arms”. “[T]he people” simultaneously exercise that right and enforce that duty by and on themselves: They exercise the right by fulfilling the duty; and they fulfill the duty by exercising the right.[2]

Footnotes:

1.) See U.S. Const. art. I, § 8, cls. 15 and 16, and art. II, § 2, cl. 1.

2.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1332.

The Second Amendment secures to each individual “the right to keep and bear Arms”, not just for his own benefit, but primarily for the benefit of everyone else. “[T]he right to keep and bear Arms”, translated through the duty “to keep and bear Arms”, emphasizes the obligation of each and every member of “the people”, not only to himself, but also to his community. Were acquisition of a firearm simply a matter of personal choice, an individual could imagine that his own firearm in his own hands was nothing more than an instrument for preserving his own life and property.[1] But when “the supreme Law of the Land”[2] requires just about everyone to possess a firearm, it compels almost every individual to recognize through his own behavior that his own firearm in his own hands is not simply an efficacious means for protecting his own life, but something of social significance. Each individual’s personal possession of a firearm suitable for Militia service constitutes his own participation in, responsibility for the exercise of, and benefit from the community’s political power. Because, in any society, “‘[p]olitical power grows out of the barrel of a gun’”,[3] the firearm in any individual’s hands represents his own personal bit of theoretical political power, which becomes effective when aggregated with the similar powers of many others. Only those individuals who hold firearms in sufficient numbers possess in principle, and usually will come to wield in practice, effective power over their society, for good or for ill. In a society formed specifically pursuant to “the Laws of Nature and of Nature’s God”, “[a] well regulated Militia” is rightly understood to be “necessary to the security of a free State”. In such a society, the people themselves must retain in their own hands the instruments of physical force necessary and sufficient to maintain their own freedom through their own efforts against every possible enemy. Each individual must possess his very own firearm, not just for himself alone, but so that the whole community will be armed—and, being armed, can remain free. So, the individual duty “to keep and bear Arms” reflects the commitment of each member of the community to the freedom of the community, because its freedom is essential to his, as well as the commitment of all members of the community to each individual’s freedom, because his freedom is essential to theirs.[4]

Footnotes:

1.) This is the so-called “individual-right” theory of the Second Amendment, which has gained a following among purported champions of the Amendment. Unfortunately, the height of its acceptance is inversely proportional to the depth of its insight into the true meaning of “the right of the people to keep and bear Arms”. See The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1339-1351.

2.) U.S. Const. art. VI, cl. 2.

3.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.

4.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1333.

“[T]he right of the people to keep and bear Arms” is as well both a “privilege” and an “immunity” in the strict legal senses of those terms. It is a privilege, because anyone and everyone among “the people” is always free or at liberty “to keep and bear Arms” with no need of anyone else’s permission to do so and no fear of incurring some punishment or penalty for doing so.[1] It is, however, only a limited privilege, because it embraces solely the freedom “to keep and bear Arms”, but no freedom “[not] to keep and bear Arms”. The duty “to keep and bear Arms” in “[a] well regulated Militia”, after all, necessarily excludes any contrary privilege to behave in a manner inconsistent with proper “regulat[ion]”.[2] This is true even with respect to conscientious objectors, because WE THE PEOPLE are not constitutionally required to respect conscientious objection where “the security of a free State” is concerned.[3]

“[T]he right * * * to keep and bear Arms” is also an immunity for “the people” as against both rogue public officials and intermeddling private parties, because everyone labors under a disability (or lack of legal power) to interfere with—in the language of the Second Amendment, to “infringe[ ]”—both “the people[’s]” exercise of “th[at] right” and their compliance with their duty “to keep and bear Arms” for the purpose of service in “well regulated Militia”.[4] Other than through a formal Amendment of the Constitution[5]—and probably not even by that route, if the principles of the Declaration of Independence are consulted—no one can repeal, alter, or otherwise claim to change the meaning of either “the right” or the duty “to keep and bear Arms”.[6]

Footnotes:

1.) Arthur L. Corbin, “Legal Analysis and Terminology”, 29 Yale Law Journal 167-168 (1919).

2.) Id.. at 167.

3.) See The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 969-973

4.) Id..at 1, page 170.

5.) See U.S. Const. art. V.

6.) Id., at 3, page 1334.

The so-called “individual-right” theory of the Second Amendment has gained a following among purported champions of the Amendment in modern times. Unfortunately, the height of its acceptance is inversely proportional to the depth of its insight into the true meaning of “the right of the people to keep and bear Arms”.

Both the Militia Clauses of the original Constitution and the Second Amendment guarantee not only a “collective right” of “the people” to participate in “well regulated Militia” as establishments within the federal system but also an “individual right” of each American among “the people” who compose or could compose the Militia to acquire and possess firearms suitable for Militia service, whether he actually trains and deploys in the field or not.

The Second Amendment is not merely redundant, because it explicitly highlights what is only implicit in the original Constitution: namely, that “[a] well regulated Militia” is “necessary to the security of a free State”—thereby making clear that “the Militia of the several States”, predicated upon “the right of the people to keep and bear Arms”, are indispensable structural components of America’s constitutional edifice.

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