NRA, SECOND AMENDMENT AND "WE THE PEOPLE"
Dr. Edwin Vieira, Jr.,
December 21, 2015
Fair Weather Friends
NRA, SECOND AMENDMENT AND "WE THE PEOPLE"
Dr. Edwin Vieira, Jr.,
Fair Weather Friends
As a member of the National Rifle Association, I regularly receive its magazine, The American Rifleman. In the December 2015 issue appears an editorial by Wayne LaPierre, the NRA’s Executive Vice President, entitled “Obama, Hillary Embrace Gun Confiscation”. Although this observation of present political facts should hardly surprise anyone, it rightly vexes Mr. LaPierre, because of the dark history of “gun control” in Britain and especially in Australia—where confiscation went forward (according to him) “[t]o assuage an insane notion of collective guilt to impose a national gun ban”, and “will never end until the last firearm is removed from private hands”.
Now, most astute observers understand that, although the systematic disarming of Britons and Australians by their own rogue public officials over the years “will never end until the last firearm is removed from private hands”, it never has had anything, and today has nothing, to do with psychobabble about “collective guilt”, or even some “insane notion”, but instead was and is the product of a coldly calculated policy contrived by political elitists who were, and remain, intent upon creating in those benighted nations the conditions necessary for the imposition and perpetuation of police states. These events have been, in no small measure, “models” or “test beds” for the same tactics to be employed against the United States, for the same ultimate purpose. So I wonder whether Mr. LaPierre really imagines that, as leading political elitists in this country, Mr. Obama and Mrs. Clinton espouse confiscation of Americans’ firearms simply because they supposedly suffer from “collective guilt”, or are the victims of “insane notion[s]”. After all, America’s rogue public officials have generally proven themselves to be ruthless political racketeers whose every exercise of real or imaginary power demonstrates that a police state in this country appeals to them far more than what the Second Amendment calls “a free State”. Arguably, these miscreants might be found guilty of numerous crimes, or perhaps even be diagnosed as “insane” in some sense—all too many political figures in high offices in the Western World today being at least subject to suspicion as narcissistic psychopaths. Yet there is method in what might be deemed their madness with respect to “gun control”. And it is their method which must be opposed, whether they are cunning criminals who deserve condign punishment, or merely pitiable wretches who suffer from some mental disease or defect.
Which brings me to my dissatisfaction with Mr. LaPierre’s editorial. He frets that Mr. Obama and Mrs. Clinton “would alter the makeup of the U.S. Supreme Court with the goal of overturning the landmark decisions that have recognized the sanctity of the Second Amendment in guaranteeing our right to keep and bear arms.” (Here, he refers to the Court’s recent Heller and McDonald decisions.) But if those decisions had ruled against the construction of the Second Amendment which Mr. LaPierre favors (as, by merely one vote among the Justices, they almost did), would he now be so enthusiastic about preserving them? Or would he, precisely in the fashion of Mr. Obama and Mrs. Clinton (and many others of their political coloration), be in favor of “alter[ing] the makeup of the U.S. Supreme Court with the goal of overturning th[os]e * * * decisions”? The answer to that question is obvious.
Unfortunately, Mr. LaPierre seems to embrace the fallacy known as “judicial supremacy”: the notion that the Constitution means whatever some decision of the Supreme Court says that it means. In practice, this reduces to the perverse conclusion that the Constitution must be taken to mean whatever the fifth fool who creates a majority among the Justices happens to believe at the time, no matter how obviously wrong that belief may be. So America is controlled by “a government of men”, all too fallible and corruptible, not “a government of laws” the meanings of which are capable of objective determination.
The truth is, however, that a decision of the Supreme Court does not determine whether the Constitution means this or that. Rather, the Constitution determines whether a decision of the Supreme Court in favor of this or that is correct or incorrect. We know that this must be the true rule of constitutional construction, because—by their own admissions in cases such as Payne v. Tennessee, 501 U.S. 808, 828-830 & note 1 (1991)—the Justices have been wrong about the Constitution in the past, time and again, and therefore can and surely will be wrong in the future. Today they may hand down decisions such as Heller and McDonald, which equivocally limit certain aspects of “gun control”; and tomorrow they may concoct some hideous decisions reversing Heller and McDonald in favor of “gun control”. So as an institution the Court is a weak reed on which to lean if the goal is to enforce the Constitution, as opposed to some Justices’ idiosyncratic—perhaps idiotic—musings about the Constitution.
To his credit, Mr. LaPierre does realize that “judicial supremacy” poses a practical political problem: namely, who are the Justices to be? The Supreme Court is not a permanent group of wise men and women who unerringly issue opinions in perfect conformity with the Constitution as Mr. LaPierre understands (or perhaps misunderstands) it. The Court’s composition changes over time. So the only way to ensure that his interpretation of the Second Amendment prevails is continually to “pack” the Court with new Justices in sympathy with that interpretation. But to “pack” the Court requires control of the White House and the Senate, the joint efforts of which determine the Court’s composition. So Mr. LaPierre calls upon the NRA’s members to “organize as never before and stand united in voting to save the Second Amendment in November 2016”.
The problem is that America cannot rely on elected politicians to enforce the Constitution (even if the elections are actually honest). After all, since the 1930s who has enacted the various “gun-control” statutes which Mr. LaPierre hopes the Supreme Court will eventually strike down as “infringe[ments]” of “the right of the people to keep and bear Arms”, if not Members of Congress in league with various Presidents? If these people could have been, or their successors could now be, trusted to defend what Mr. LaPierre calls “the sanctity of the Second Amendment”, why would anyone be concerned with the present or the future composition of the Supreme Court? There would be no issues of “gun control” to come before the Court. And if these people cannot be trusted with the defense of the Second Amendment today or tomorrow—just as History proves that their predecessors could not be trusted in yesteryears—then how can they be trusted to appoint Justices to the Supreme Court who will defend that Amendment any more rigorously than they themselves have failed to defend it?
The undeniable political fact is that Congress, the President, and the Supreme Court are unstable and untrustworthy institutions which need to be closely supervised and controlled at all times, especially between elections. The very existence of the Constitution—replete with “checks and balances” as it is—proves as much. Moreover, the existence of the Second Amendment—or any other provision of the Constitution—by itself guarantees nothing. The Constitution is not self-interpreting and self-executing. Its “checks and balances” must be understood, and then put into operation—religiously, rigorously, even ruthlessly. And for that purpose WE THE PEOPLE cannot rely solely upon their ostensible “representatives” in any branch of government. For those “representatives”—whether through ignorance, indolence, insouciance, self-interest, or criminal inclinations—may turn out to be the sources of the problem. To defend the Constitution, WE THE PEOPLE must depend upon themselves. They are the authors of the Constitution. As its authors, they are its final interpreters. And to ensure that their interpretations are taken seriously by public officials, they must be its ultimate enforcers. But how are WE THE PEOPLE to accomplish this task?
To answer this question requires no more than to read the Constitution. The only stable and trustworthy establishments the Constitution incorporates within its federal system are “the Militia of the several States”. They are stable and trustworthy because they are always composed of the sovereigns themselves, WE THE PEOPLE, not merely some ever-mutating gaggle of possibly incompetent or disloyal “representatives”. If THE PEOPLE themselves cannot be trusted to exercise their own sovereignty in their own interest, who can be? Certainly no one else in what the Second Amendment calls “a free State”—that is, a polity based upon popular self-government. In the final analysis, in “a free State” THE PEOPLE can depend upon no one other than themselves to maintain their freedom.
That is why the Second Amendment itself declares that “well regulated Militia” are “necessary to the security of a free State”. Not the Supreme Court—not Congress—not the President—not the NRA and all of its efforts in lobbying, litigation, electioneering, and public education—not isolated individuals trying to exercise the so-called “individual right to keep and bear arms”—not even those private groups which ignorantly style themselves “militia”. No, not any one of these alone, or any combination of a few of them, or even all of them together, but instead “well regulated Militia” defined (as Virginia’s Declaration of Rights so accurately defined them in 1776) as “composed of the body of the people, trained to arms”. Not just some of “the people”—but “the body of the people”—“trained to arms” so as to secure the Power of the Sword in the hands of the sovereigns themselves.
If in the last several decades the NRA, and Americans in general, had payed due attention to all twenty-seven words in the Second Amendment—and particularly the first thirteen, not just the last fourteen on which the NRA dotes—patriots would not have to worry about the legalistic clap-trap some majority of Justices of the Supreme Court might spew out in favor of “gun control”. For there would be no “gun control” as we know it today. If the Militia existed as the Constitution requires that they exist, Mr. LaPierre would have no occasion to rail against such “gun-control” fanatics as one Fred Hiatt, of The Washington Post, whom Mr. LaPierre quotes as calling for a “cultural shift” which will lead to “[a] gun-free society’”. Of course, Mr. Hiatt does not actually propose “[a] gun-free society” in the fullest sense of those words. No, indeed. In the society he advocates, regular armed forces and para-militarized police departments and other “law-enforcement agencies”—all of them equivalent to large or small “standing armies”—would have guns, and plenty of them. And out of the barrels of those guns these “standing armies” would impose, under the guise of “martial law” or other “emergency powers”, the policies that Mr. Hiatt and his co-thinkers want to see directed against common Americans—Americans who, because they were thoroughly disarmed, would be unable to mount any defense against those policies, not matter how tyrannical they might be. To be sure, Mr. Hiatt himself may be simply another muddled “liberal”, incapable of coherent thinking along constitutional lines, rather than a self-conscious totalitarian. But the “gun-free society” he advocates would, of necessity, be nothing less than the opposite of what the Second Amendment calls “a free State”: namely, “a[n un]free State”. (Perhaps for him, too, as well as for the vast majority of his countrymen.)
Mr. LaPierre no doubt understands, and rightly fears, this outcome. But, in opposing it, he fails to bring to bear against it the full armamentarium the Constitution provides. The last fourteen words of the Second Amendment are not enough. The first thirteen are, as they themselves attest, “necessary”. WE THE PEOPLE must exercise “the right * * * to keep and bear Arms”, without “infringe[ment]”, through “well regulated Militia”—and not just to resist “martial law”, “emergency powers”, and other manifestations of usurpation and tyranny; but also to do everything else that “well regulated Militia” could do, and would do, and must do today that would have nothing to do with resisting usurpation and tyranny, but everything to do with providing “the security of a free State” from other, perhaps more immediate, dangers.
I have written extensively about this subject in many of my columns for NewsWithViews, and in books such as The Sword and Sovereignty, Thirteen Words, Three Rights, and By Tyranny Out of Necessity: The Bastardy of “Martial Law”. Yet tireless repetition of this message appears to be obligatory upon me in particular, as vanishingly few people seem to be paying any attention—not so much to me, but to the Constitution. As an NRA firearms instructor, I am well aware from my training that no amount of repetition of the NRA’s three basic rules of firearms safety—to wit, “always keep the gun pointed in a safe direction”, “always keep your finger off the trigger until ready to shoot”, and “always keep the gun unloaded until ready to use it”—can ever be excessive. How much more so for the most important teaching of the Constitution: to wit, that “[a] well regulated Militia” is “necessary to the security of a free State”? Can any number of reiterations of this precept be too many? More importantly, can its implementation be left in abeyance?
The question I put to Mr. LaPierre, to the NRA in general, and to all of the rest of the self-styled advocates of the Second Amendment is: “When do you intend to take this admonition seriously?” When it is too late?
No one can doubt that the herd of “gun-control” fanatics stampeding throughout this country today poses a clear and present danger to “a free State”. But no less—and perhaps more—dangerous are the supposed champions of the Second Amendment for whom only its last fourteen words have any significance. The “gun-control” fanatics at least understand what is at stake. Their constant attacks on so-called “assault” firearms, “high-capacity” magazines, and the most effective types of ammunition prove that they want to make revitalization of the Militia impossible, under any circumstances, by denying Americans the ability to possess the very equipment which is peculiarly apt for Militia service.
The counter-arguments from defenders of the Second Amendment that this equipment may be useful for individuals’ self-defense against common criminals, or even against real domestic “terrorists”, although true in principle is largely beside the point in practice. For this equipment is not uniquely useful for those purposes, and in many instances would not be useful at all (as most individuals are unlikely to be out and about in society on a daily basis with AR-15 rifles slung on their shoulders.)
The real constitutional argument against contemporary “gun control” lies in the first thirteen words of the Second Amendment. Namely, that every American eligible for the Militia—which includes every able-bodied adult man and woman (other than conscientious objectors)—has a right, and more importantly a duty, to possess whatever firearms can serve any purpose in the Militia, under any circumstances in which the Militia might be called forth. Constitutional “gun control” requires the possession of firearms of every description by every American eligible for the Militia. (Not that every American would necessarily possess every type of firearm; but that no American would be denied a right to possess any type of firearm.) Every self-styled advocate of the Second Amendment who denies this, or who simply evades the matter entirely, turns other Americans away from the constitutional solution to “gun control”, and thereby actually aids and abets the proponents of “gun control”. It may be that these people are motivated by good, if misguided, intentions. But the road to Hell is paved with good intentions, all of them misguided. And this country is too far down that road already to tolerate further misdirection.
� 2015 Edwin Vieira, Jr. - All Rights Reserved
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
He can be reached at his new
The counter-arguments from defenders of the Second Amendment that this equipment may be useful for individuals’ self-defense against common criminals, or even against real domestic “terrorists”, although true in principle is largely beside the point in practice.