Is The D.C. Gun Case Off Target?
Part 3 of 3
Saturday, March 15, 2008
By Dr. Edwin Vieira, Jr.
NewsWithViews.com
Even if the foregoing problems were set to one side, and some particular
Founding Father could in some sense be deemed an “expert” on the subject,
his words would not necessarily constitute conclusive evidence. After
all, he could have been intentionally misstating the matter to make
a point in a political debate. He could have been biased. He could have
been honestly wrong or confused. Or he could simply have expressed himself
badly. And how is one to know? Even in a court, where an expert testifies
under oath, his opinion on a matter within his area of expertise is
subject to cross-examination on both its basis and its sufficiency.
And a jury may discount or disregard entirely the expert’s testimony,
if it determines that the foundation for his opinion, his reasoning
there from, or his conclusion is faulty—or that in some other respect
he is unreliable as a witness. But the Founders are not present to be
cross-examined on their opinions.
So, what can be identified as the objective basis for the Founders’
subjective opinions concerning “the right of the people to keep and
bear Arms”? That basis was their own personal experience and knowledge
of pre-constitutional history. (They were not talking about theory
at all.) And in every case, both their experience and their knowledge
were largely the products of laws—specifically, the pre-constitutional
Colonial and State Militia statutes. Many, if not most or even all,
of these men had actually served in the Militia in their Colonies and
States, or at least were subject to and aware of the Militia laws prescribing
the duties of service.
Therefore, the best evidence is not the Founders’ personal opinions as to what
“the right of the people to keep and bear Arms” entailed throughout
the 1600s and 1700s, but instead the actual pre-constitutional laws
that specified what was supposed to be done, and what were the standards
that governed when, how, and by whom it should be done, with respect
to the actual “keep[ing] and bear[ing of] Arms” by “the people”. The
Colonies and independent States enacted dozens and dozens of such laws
from the early 1600s to the late 1700s. All were substantively the
same (outside of some special provisions that applied only to “patrols”
in the Slave States). These statutes tell us precisely what “well regulated
Militia” were—indeed, many describe themselves in so many words as “regulating”
the Militia of this or that Colony or State; and that their provisions
were enacted and reenacted throughout that period, without substantive
change, tells us that these statutes were understood to have “well
regulated” the Militia. The statutes also tell us that “the right of
the people to keep and bear Arms”—not simply “a” right, but “the”
right—was actually in its operation a complex duty, and as the consequence
of being a duty was also a right to be interposed in opposition to any
interference with fulfillment of that duty. These laws are straightforward,
impersonal, objective, historically verifiable in every detail, and
utterly consistent in their various iterations over an extensive period
of time. They validate the Founders’ opinions, not the other way around.
They, not the Founders’ opinions or lawyers’ arguments based on such
opinions, tell us what the Constitution means when it speaks of “Militia”,
“the people”, and “Arms”. In a judicial world ruled by ratiocination
and fair play, that should be enough.
As anyone who has read my book How
To Dethrone the Imperial Judiciary
knows, I can muster good
and sufficient reasons why judicial “precedents” have little utility
as means for construing the Constitution, and often provide the grist
for much mischief in that endeavor. After all, precedents are only the
opinions of different sets of fallible judges, which can be complete
or incomplete, correct or incorrect, honest or dishonest, and so on.
A judicial opinion does not determine what the Constitution actually
means. Wearing a black robe does not transmute Judge Rancid Flapdoodle
from an ignoramus into a constitutional prophet, any more than sitting
in an elevated chair in the judicial simulacrum of a throne room makes
him a king. Rather, the Constitution determines whether a judicial opinion
is right or wrong. Nonetheless, if one feels compelled to play the lawyers’
game of parsing precedents penned by political appointees, rather than
reasoning from the legal history and principles that control and judge
all precedents, he needs to consult the best precedent from the Supreme
Court on the Second Amendment, United States v. Miller, 317 U.S.
174 (1939).
Although even many lawyers fail to understand it, Miller is a decision
strikingly favorable to “the right of the people to keep and bear Arms”—a
decision in which the Justices, on their own initiatives, rejected a
veritable torrent of one-sided “gun-control” arguments, and correctly
employed the “Militia interpretation”, not the “individual-right
theory,” of the Second Amendment, on the basis of just three pre-constitutional
Militia statutes from Massachusetts, New York, and Virginia. Unfortunately,
perforce of a rather technical point of law, Miller did not go far enough
in the direction of securing, once and for all, “the right of the people
to keep and bear Arms”, because the factual record in the case was incomplete.
Yet, by using Miller as the dispositive precedent—backed up by hundreds
of pre-constitutional Militia statutes from all of the original
thirteen Colonies, and by evidence establishing that the firearm Heller
desires to possess in his home is useful for Militia purposes—Heller
would be able to prevail without mentioning the “individual-right theory”
at all.
Having considered the possibility of a favorable decision in Heller,
one must also ask how much Americans could lose as the result of an
unfavorable outcome. Surprisingly enough, the answer is: “perhaps not
necessarily everything.” Obviously, if the Court adopts the “individual-right
theory” in whole or part, revitalization of “the Militia of the several
States” such as I propose in Constitutional “Homeland Security,”
Volume One, The Nation in Arms can go forward, because the “individual-right
theory” and the “Militia interpretation” of the Second Amendment are
perfectly compatible in practice as far as the Militia are concerned,
even though the “individual-right theory” is defective in principle.
On the other hand, an unfavorable decision in Heller probably would
signal the end for the “individual-right theory” in contemporary constitutional
litigation. Yet that would not be an unmitigated disaster, because the
“individual-right theory” is at best incomplete (if not incorrect) anyway,
and in any event would be set aside only if the Court adopted some variant
of the “Militia interpretation”. And howsoever the Court did so, the
kind of reform I propose would remain viable. Moreover, my proposal
would have to be promoted, because after an unfavorable decision in
Heller it would be the only means remaining to secure “the right
of the people to keep and bear Arms” for average Americans.
If, as with every cloud, even an unfavorable decision in Heller could
prove in the long run to have a silver lining, nonetheless in the short
run it will emit much political thunder and lightning. Proponents of
radical “gun control” will run amok in every jurisdiction with the power
to pass such laws. First, subversive anti-Second Amendment special-interest
groups and the big media will propagandize for every imaginable, and
many as yet unimaginable, forms of “gun control.” Second, anti-Second
Amendment State legislators, mayors, and other public officials will
surge ahead aggressively on dozens of fronts—clones of Mayor Bloomberg
on steroids, as it were. Third, a Congress controlled by the Democratic
Party, with a President drawn from the same faction, will operate a
sausage factory of new “gun-control” schemes that will make the defunct
“assault-weapons ban” resemble an exercise in libertarianism. And fourth,
these “gun-control” ordinances and statutes will surely be upheld in
the kangaroo courts—inasmuch as the present herd of judges, nationwide,
is generally hostile to the Second Amendment, and therefore will seek
to enforce and even expand upon whatever an unfavorable decision in
Heller offers. In all of these venues, “gun controllers” will advance
a grotesquely warped “Militia theory” of the Second Amendment, aimed
at disarming everyone who is not part of the National Guard, the nascent
National police-state agencies, and the federally controlled, para-militarized
State and Local police.
These developments will set into place many more bricks in the edifice of
“gun control”—and, ultimately, prohibition of private possession of
most, if not all, firearms—that must be erected if a National police
state is to be imposed on America. For there has never been a police
state in a country in which the average citizen could and did freely
possess small arms—which, of course, is why “[a] well regulated Militia”
is “necessary to the security of a free State.” Therefore, average Americans
must be disarmed. How strikingly coincidental, then, that—just now,
at the most politically propitious moment—Heller affords the
Forces of Darkness a Hellish opportunity to advance their agenda of
oppression as never before. One can almost hear the gods laughing at
this ironic twist of events.
If these bad results come to pass, it will be absolutely essential that
patriots meet the “gun controllers’” challenge head-on, by putting forward
the correct interpretation of the clause “[a] well regulated
Militia, being necessary to the security of a free State”, and the correct
definition of “the Militia of the several States”, in the legislatures
of State after State. If that is done, an effective “individual right”
“to keep and bear Arms” for almost all Americans can be secured in one
State statute following another. Otherwise, everything will soon be
lost, for a very long time if not for good—and all the pro-Second
Amendment organizations might as well close up shop, because they will
not be allowed to operate in a police state anyway.
But can the pro-Second Amendment forces rebound from a loss (or even
an equivocal win) in Heller—in time? Years during which the necessary
groundwork could and should have been laid down have been allowed to
slip away in complacent idleness. Can this lack of effort be made up
in the face of one “gun-control” disaster after another? Oh, I should
expect that, if the “individual-right theory” is gutted in Heller,
every ostensibly pro-gun organization and writer will suddenly
and very vocally announce themselves advocates of revitalizing “the
Militia of the several States” in some way or another. The practical
problem, though, will be that—not having done all of the necessary research
and other foundational work, as I have over a long period of
time—they will be unable to finish the job in a timely fashion, because
they will not know in sufficient detail what needs to be done or how
to do it. And whether I—as one individual, working alone—can complete
this rather formidable task remains open to question.
Doubtlessly, the foregoing may not endear me to the great optimistic majority of
pro-Second Amendment intellectuals and organizations who and
which imagine that arguing a case on the “individual-right theory” in
the contemporary Supreme Court is the best way to promote “the right
of the people to keep and bear Arms”. Too bad. My purpose in writing
my commentaries is not to make everyone—or anyone, for that matter—happy.
My aim is to save this country’s bacon before the frying pan becomes
too hot, if that be possible.
I may be wrong in my less-than-Pollyannaish conclusions. I hope that events
prove my pessimism unfounded, and that the Supreme Court can be led
into accepting the “individual-right theory” of the Second Amendment,
insufficient as that theory may be. For, when dealing with “gun controllers,”
one must always be ready and willing to apply the old adage: “It takes
a crooked stick to beat a mad dog!” Certainly a mountain of not unpersuasive
arguments in favor of the “individual-right theory” has been piled up
in Heller’s brief to the Court, along with the briefs of the army of
amici curiae supporting him. My own concerns aside, Heller’s
advocates and their allies have done a workmanlike job, and should be
commended on that score. Where I differ from them is in my belief that
much of their argument is constitutionally unsound, and in any event
does not go far enough in the direction of securing by true constitutional
right a thoroughly armed and trained populace. If (as the quaint
patriotic saying has it) “God protects old drunks and the United States,”
their extensive efforts may pay off after all. Let us pray for that.
But brigaded with our prayers must march our own efforts. God helps those
who help themselves. I suspect that the Supreme Court may do otherwise
than simply bow to the “individual-right theory,” even under the weight
of all the paper Heller’s supporters have filed. So, in prudence, should
you. And we all should be planning now for the new course of action
we may have to follow if the Court takes the wrong turn.
Those who may wish to support my work on revitalizing “the Militia of the
several States” can do so by sending a check or money order to me, at
13877 Napa Drive, Manassas, Virginia 20112.
Click here for part -----> 1, 2,
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.
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.
His latest book is: "How to Dethrone the Imperial Judiciary"
He can be reached at:
13877 Napa Drive
Manassas, Virginia 20112.
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed prior interest in receiving this information for non-profit research and educational purposes only. For further information please refer to: http://www.law.cornell.edu/uscode/17/107.shtml
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