DALLAS AND THE SECOND AMENDMENT: A Response To Professor Beau Weston

As my gentle readers know, from time to time I commit “poetry”, “punery” and even “punditry. 

The problem is, you cannot be any real kind of pundit unless you read other pundits.  You have to have something to respond to.

Note: Do this only at home, kids.  

You see, in academia, the practitioners of the art of “publish or perish” take things to a high art.  But it can be dangerous when played with the pros.  Just ask Judge Robert Bork, arguably one of the most qualified nominees for the Supreme Court in the past 75 years.  He published a lot, usually in response to someone whose view of the law was 180 degrees out from his own.  That’s the way real intellectual discourse is supposed to work.  Unless you are Joe Biden (who I once, live and in person, heard suggest that perhaps, just perhaps, in the interest of national security, we might have to bring back the Court of Star Chamber (used by Charles I to enforce unpopular political and ecclesiastical policies, without cluttering up the proceedings with little niceties such as witnesses, evidence, the presence of the accused, defense counsel; it became a symbol of oppression)) or Teddy Kennedy.  Then, all that intellectual discourse becomes a weapon.  Ever wonder why no Supreme Court nominee since has let his or her judicial philosophy be examined?  But, I digress,

.

I frequently read Professor Beau Weston’s blog, Gruntled Center. He is a pundit worth reading, and responding to.  And here's the thing:  He doesn’t like guns.  He really does not like guns!  And like most liberals, because he doesn’t like something, guns in this case, he doesn’t stop there.  He doesn't want people who do like guns to have them, either.  

Now, as a conservative, I must admit that liberals do not have a monopoly on this.  An awful lot of people who detest the sin of abortion—who would never undergo the procedure themselves—are nonetheless always ready to take away from those who do favor abortion that which the Supreme Court—however erroneously—has declared to be a Constitutional right.

But, again, I digress.

Fall out!

Trot on over to “TheGun-Obsessed Got Their Way In Dallas.”  

Good.  You're back.

Fall in.

Right, Face.

For-ward, March!

Whew! 

Powerful.

Forceful.

Moving, even.

 And, I have to concede, a fair presentation of your side of the argument.  Fair, but one-sided, but that is OK: that’s why we historians and lawyers remember the Lincoln-Douglas Debates rather than The Lincoln Debate or The Douglas Debate....Fair, that is, until you wandered off into fantasy land where you get to re-write the Constitution and laws.  Fair right up to the part where you said "Everyone, that is, except the actual 'well-regulated militia,' the police force.”

Did you really think that no one would look?  No one would check, for instance, the Constitution of the Commonwealth of Kentucky ?  Your home.  The place where you teach and worship and vote.

I looked.   

Let’s start with the Kentucky Constitution:

"PREAMBLE We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.

BILL OF RIGHTS That the great and essential principles of liberty and free government may be recognized and established, we declare that: Text as ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended. (sic)

 Section 1. Rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties. …

Fifth: The right of acquiring and protecting property.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons. Text as ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended. Free speech, right of, Const. 8; Religious freedom, right of, Const. 5. (sic) …

Section 219. Militia, what to consist of. The militia of the Commonwealth of Kentucky shall consist of all able-bodied male residents of the State between the ages of eighteen and forty-five years, except such persons as may be exempted by the laws of the State or of the United States. Text as ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended. (sic) (Emphasis added.)

Section 220. General Assembly to provide for militia – Exemptions from service. The General Assembly shall provide for maintaining an organized militia, and may exempt from military service persons having conscientious scruples against bearing arms; but such persons shall pay an equivalent for such exemption. Text as ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended. (sic)"

Note: Professor, if you are under the age of 45, you are part of Kentucky's militia (§219), but you can pay a bounty and let someone else serve if you want to (§220).  

Continue to march!  But why stop at a mere constitution. 

Ky Rev Stat "37.170  Kentucky State Defense Force -- Organization -- Reorganization.

(1) The Governor is hereby authorized to enlist, organize, maintain, equip, discipline and pay when called into active field service a volunteer state defense force other than the National Guard, which shall constitute the active militia and shall be known as the Kentucky State Defense Force, which shall consist of able-bodied citizens who are residents of the State (sic) of Kentucky between the ages of eighteen (18) and sixty-four (64) who are not active members of a reserve component of the Armed Forces of the United States.  (Emphasis added.)

 (2) Whenever the President of the United States shall call any part of the National Guard of this state into active federal service, the Governor is hereby authorized to organize the Kentucky State Defense Force under such regulations as may be promulgated by the Governor or adjutant general.

(3) The Governor shall have the power to alter, divide, annex, disband or reorganize any organization of the Kentucky State Defense Force whenever in his judgment the efficiency of the state forces will thereby be increased, and he shall have power to change the organization so as to conform to the regulations now or hereafter prescribed by the laws of the United States for the organization of the National Guard or militia. History: Amended 1984 Ky. Acts ch. 414, sec. 47, effective July 13, 1984. -- Amended 1974 Ky. Acts ch. 108, sec. 10; and ch. 386, sec. 9. -- Amended 1962 Ky. Acts ch. 48, sec. 3. -- Created 1942 Ky. Acts ch. 4, secs. 1, 4, and 8. (sic)"

Oooooo, did you see that?  The statute says 18 to 64.  Hey, I am a strict constructionist.  I'll represent you to challenge that apparent use of legislative fiat to amend the Constitution, although you may want to get someone more prominent than me.  

If I was the Commonwealth's Attorney General and I was going to defend the Statute, I would look for a really prominent Constitutional Law Professor--one nearing the end of his current job and one who thinks the legislature, or even the Governor, can just use a pencil and a telephone to change the Constitution to do the job.  But if you want me, I'm there for you.

But, you say, that’s just Kentucky.  Good point.  Let's look at federal law:

10 U.S. Code "§ 311 - Militia: composition and classes

(a)  The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. 

(b)The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, § 1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, § 524(a), Nov. 30, 1993, 107 Stat. 1656.)"

(Emphasis added.)

So, let’s recap.

One: The Police are not "the" militia!  

Two: At best, the National Guard is only one small part of  the militia.

Three:  The Constitutions of many States (and arguably, the Constitution of the United States, see amend 2) recognize and actually reserve to the people the “right of revolution,” a right which can only exist so long as the State has no power to disarm its citizens. 

But, “Wait,” you say.  “Right of Revolution," you say/  "In this day and age," you say?  Nonsense,” you say!

OK. Yes. Yes. No.

Yes, in this day and age. Consider New Hampshire Constitution, art 10, adopted 1784, never amended or abolished:

 “Art 10.  Right of Revolution.   Whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”  See, also, Pennsylvania const, art 1, §2 (Declaration of Rights) ("All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.”); Tennessee const, art 1, §2 (“That government being instituted for the common benefit, the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind."); North Carolina const, Declaration of Rights, 3d (“That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.”).  (Emphasis added.)

Oh, and seeing as how you started this with Texas, see, Texas const, art 1, § 2 (“All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”

But, I saved the best of all for last!  Constitution of the Commonwealth of Kentucky, Bill of Rights. 

 “Section 4. Power inherent in the people – Right to alter, reform, or abolish government. All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper. Text as ratified on: August 3, 1891, and revised September 28, 1891. History: Not yet amended. (sic)”

That's it.  The militia is so much more than the United States armed forces, and the National Guard.  It is all of us.  And lest we forget that wonderful "manner as they may deem proper" language, that says when the oppressive government will not listen, will not redress grievances, the people, the militia, have as a last resort the right to grab their rifles and exercise their ultimate political right.  

And they can only do that if they are armed--armed with the same kind of weapons as the Government's troops, just as the men at Lexington Green and Concord Bridge were armed with the same type of weapons as the Brown Bess--the M-16 of its day.

And that, kind Sir, I submit to you, is what the Second Amendment is really all about.