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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.
Edwin
Vieira
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