Category Archives: Second Amendment

Scholars and activists began to argue for an individual right to bear arms, but it would be another 31 years until the Supreme Court laid pen to paper on the 2008 and 2010 decisions that allowed citizens to keep weapons in their homes.

It was controversial. In both cases, four justices thought the amendment is just about the militia, but thats not what prevailed, says Liebell, explaining that the courts chose to rule in favor of an individuals right to self-defense, grounded in common law.

Fast forward to 2021 and New York State Rifle & Pistol Association v. Corlett, a case involving two NYSRPA members, Robert Nash and Brandon Koch. Nash and Koch had individually applied for a concealed-carry firearm license for the purpose of self-defense, citing recent neighborhood robberies (Nash) and completion of a firearms safety course (Nash and Koch).

However, both parties were denied the specific license they requested under New Yorks proper cause standard for self-defense. The law requires that an individual have a special need for self-protection distinguishable from that of the general community.

What exactly qualifies as a special need under New York law?

If youre carrying money at night, if youre doing business with people at weird hours when others arent around: Those are the scenarios in which they regularly grant this, Liebell says, adding that domestic violence survivors may also fall into this category. Its far more common than you would think.

New Yorks proper cause standard qualifies it as one of nine states with a may-issue permit policy. This means that a permit is required to carry a concealed handgun and that the granting of said permit is subject to certain criteria laid out by the state. Even then, it is up to local authorities discretion whether or not to grant the permit by determining proper cause.

Before the 14th Amendment was passed and ratified in 1868, states like Indiana, Tennessee, Virginia, Alabama, Ohio, all banned concealed weapons. You had to actually hand over your guns and put them in a box to come into Dodge City or Tombstone, Arizona places we associate with guns in the Wild West, says Liebell. So, youve got to look at the many laws that have restricted concealed carry.

New Yorks may issue is just one interpretation of the Constitution; other regulationsrange from not requiring an individual to have a permit to carry a concealed weapon, to not allowing individuals to carry a concealed weapon at all.

In a federal system like ours with 50 states, the Constitution is there to set certain standards, and then the states and localities have to actualize those standards, explains Liebell.

And so, it is up to the Supreme Court to determine if New Yorks decision to deny a license falls under its local purview, or if it violates Koch and Nashs Second Amendment rights.

There are several directions the court could go in next month and, with a number of new justices and a conservative-majority bench, it will be hard to predict which way theyll lean.

We do not know exactly what they are willing to do in terms of textualism, which is exactly what the text says, or original understanding at the time, which is very fraught and establishing it, in my scholarly opinion, is really impossible, says Liebell.

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Supreme Court to Hear Landmark Second Amendment Case ...

Proposal filed by Representative Josh Bray

FRANKFORT, Ky. (WTVQ) On Thursday, members of the House voted to approve a proposal filed by Representative Josh Brays legislation that makes Kentucky a Second Amendment Sanctuary State. The bill, HB 29, would prohibit identified entities from enforcing federal firearm bans.

Representative Bray spoke on the House floor Thursday about the importance of his legislation for the gun owners of Kentucky, Over the past year, we have seen an increase in the rhetoric. It comes from as far away as the Oval Office as the President calls for additional federal firearm restrictions.

According to the Legislative Research Commission (LRC), HB 29 would prevent any federal firearm regulations enacted after January 1, 2022, from being enforced with Kentucky tax dollars or tax payer dollars. Across the United States, 15 states have enacted similar legislation, according to the LRC. Also 115 out of the 120 counties in the commonwealth have passed similar resolutions. The bill simply prohibits the enforcement of firearm bans. It does not prevent the federal government from enforcing any new law or regulation or prevent the General Assembly from enacting new laws or restrictions.

We are all too familiar with government overreach. As we speak, the administration is looking to ban pistol braces. A ban on these braces would make felons out of thousands of Kentuckians overnight. Let me be clear: this would be without a single legislative vote cast. Were talking about law-abiding Kentuckians criminalized by a regulatory change, Rep Bray added.

The bill passed with a vote of 75-20 and now awaits further action in the Senate.

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Bill aimed at protecting 2nd amendment rights passes on House floor - ABC 36 News - WTVQ

We live in contentious times. According to a 2020 study by the National Bureau of Economic Research, political polarization among Americans has grown rapidly during the last 40 years.

Theres evidence that within the U.S., the two major political parties have become more homogeneous in certain ways, including ideologically and socially, said Jesse Shapiro, a co-author of the study and a professor of political economy at Brown University. So when you identify with a certain party and youre looking across the aisle, the people youre looking at are more different from you than they were a few decades ago.

Given the degradation of political discourse in our country and the growing list of hot-button issues pitting us against friends and neighbors, its easy to see the divide. But as Sunshine Week begins this year, lets remember that no matter where we stand on a particular topic, we all need accurate information to shape our opinions and best advocate for ourselves.

The mission of Sunshine Week March 13-19 this year with related events occurring throughout the month is to promote a dialogue about the importance of open government and freedom of information. The sunshine reference is attributed to U.S. Supreme Court Justice Louis D. Brandeis who famously wrote that sunlight is said to be the best of disinfectants. In other words, an informed citizenry is the best check against government corruption.

This is the idea behind state public record and open meeting laws, as well as our federal Freedom of Information Act. Government transparency is a non-partisan principle that transcends whos in office or which political party is in control. Freedom of information or sunshine laws open up government and empower people through information.

The University of Southern California Annenberg School for Communication and Journalism published a report last fall analyzing the polarization in our country. The report identified the most contentious issues which included gun legislation, policing, and vaccines. As Americans, we may have starkly different opinions about these issues. But consider the common ground we can find when looking at them relative to government transparency.

To have an informed debate about gun legislation, for example, it may be helpful to know basic data points like how many firearms are being manufactured in the country or the number of gun-related deaths each year. We may need to determine where its most difficult to obtain a firearms license or to read emails among government officials looking to curtail Second Amendment rights.

Before we discuss whether a police department should be defunded, we should first determine how much funding that agency receives. How is money spent within local, state, and county law enforcement agencies? For us to have a conversation about police officers using force against citizens, we need to know the policies within each department and under what circumstances lethal or non-lethal force can be used.

More than two years into the COVID-19 pandemic, debate still rages about vaccine efficacy and government mandates. Fueling that debate is a steady flow of misinformation that can be counteracted by federal data on vaccine trials, statistics on state resident vaccinations, local school district vaccine requirements for teachers and students, and other vaccine-related records.

While sunshine laws vary from state to state, all this information should be available to us through public record statutes and federal Freedom of Information Act. Wherever we ultimately land on the issues, these laws exist to provide us a way to learn about government and better support our positions.

But despite the mandated sunshine, shadows persist. Public record request deadlines are often ignored. Inadequate staffing and request backlogs result in delays. Documents are excessively redacted. Citizens are shut out of public meetings. The flow of information can be slowed to a glacial pace.

This is a reality that should concern us all. Every American should be waving the banner for government transparency. The consequences of secrecy affect not just our ability to have good-faith debates about the issues that matter most, but they also limit our ability to oversee government and the work it does on our behalf. When it comes to transparency, were all stakeholders.

So, here are a few things we can do to honor Sunshine Week:

Thoughtful debate about serious issues is central to our democracy, wrote the authors of the Annenberg study. But solving real problems is impossible when every issue is viewed through a distorted lens that is often informed by sources who create their own facts to further their own power.

Sunshine laws are integral to thoughtful debate. They can provide us the knowledge needed to form opinions about whats best for this country and how well our government is leading the way. But those laws need to be protected and strengthened. Thats something we can all agree on.

Justin Silverman is executive director of the New England First Amendment Coalition. Learn more about the coalitions work at nefac.org.

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Sunshine Week 2022: We should all agree on government transparency (Viewpoint) - MassLive.com

In any negotiation to stop Vladimir Putin's unprovoked terror war against the Ukrainian people,maywe add one small demand that he open his borders to anti-Americans here at home?

I think he would be good with that.

I know I would.

I'm talking about the gun-toting, flagpole-wielding insurrectionists, those faux-truckers with their faux demands for faux freedom from wearing masks they weren't wearing anyway at least not over their noses and all those folks who want to push their religious beliefs or unbelievably idiotic conspiracy theories on the rest of us, the reasonably educated "elite."

RELATED:The "People's Convoy," like Trump's social media platform, is a right-wing grift gone bust

Anyone who (at least until very recently) has openly praised Putin as being a stronger leader than their own president.

Ajury just reached the first conviction of a Jan. 6 insurrectionist, and he will be sentenced in June. Given that there are something like 750 cases coming up for the Justice Department to deal with, some have suggested that the judge in that case will hand out a severe sentence to encourage others to make a plea deal.

What if these defendants were given the freedom to make a different choice one that would save the country the expense of a trial and likely incarceration? They could emigrate to Mother Russia. (It might be more appealing if Putin rebrands that as "Daddy Russia," given the general misogyny and repressed erotic longing found on the American right.)

It's nice to see Republican support for Ukraine's struggle against Russia's war after a fair amount of initial hedging and polls show a vast majority of Americanssay theyare willing to deal with increased gas prices to support the overall effort. But there is no doubt that Republican leadership will start blaming President Biden for rising gas prices the moment they think they can get away with it oh wait,they never stoppedas if he, or any president, has any control over the price at the pump.

But to all true-red Putin fanboys, like Fox News "personality" Tucker Carlson, and those who, like him, see in Russia or Hungary a model for our future, I say: Go. Democracy makes you feel veryuncomfortable, like reading some generally beloved literature. And lots of science. And a good deal of history. And, now,gender studies.

The problem with you is that your oft-stated desire to "be free" is mostly about imposing your religious beliefs on others and curtailing your fellow citizens' freedom to life, liberty and the pursuit of their own happiness including the liberty and happiness one feels as a citizen in casting a ballot, exercising democratic responsibility and feeling that fundamental sense of agency in the world.

Your idea of freedom is that everyone is free to think like you do. (How Putin-esque!)Are your antidemocratic impulses a good fit for living in the increasingly diverse United States of America in the 21st century? Let me put it in a wayyou'll comprehend: Nyet.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

Perhaps the AARP magazine should include Russian Federation statesand allied countriesin upcoming features on the best places to retire. You know, the AARP staff could provide additional categories for aging Americans with pro-Putin leanings to consider. Along with the standard categories of taxes, recreation and health care, they could include how adeptly officials in the region suppress protesters, women and journalists, or how helpful they are to folks who want to launder money in the West. Some wealthy Americans might choose to retire to, say, Belarus or Kyrgyzstan instead of Florida (and not go through the current endless hassle of turning FloridaintoBelarus or Kyrgyzstan). For less affluent Russia lovers, "Borscht-ing on a Budget" and "Surviving andThriving in a Siberian Winter!" are a couple of feature story ideas that immediately come to mind.

Here at home, we would also love to be free of your endless trolling which is an impulse, come to think of it, that could stand you in good stead in the Russian Federation or its allied states. As would that strong desire you seem to have lately to suppress the vote, rat on your neighbors andturn them in to the authorities(which, OK, can sometimesbackfire).

You would have the freedom to live in a land where books don't need to be banned or burned, because theysimply aren't published in the first place; where LGBTQ rights are unknown, partly because such acronyms, as well as human rights in general, remain unworkable in Russian; and where women and people of color know better than to raise their voices as full human beings.

You know, those good old "real American" values!

We can save the nation, and the union, while not breaking it up by states or counties or ceding our reddest counties to the protectorate ofPutin's lame alt-NATO, the CSTO. You and your fellow Putin admirers, along with evangelicals (who don't comprehend the First Amendment), gun fetishists (who don't comprehend the Second Amendment) and white supremacists (who don't understand the 14th, the 15th and well, any number of amendments, as well as the life and message of Jesus) can live in a country much better suited to your zealotry and fervent beliefs.

As Christian historian Jemar Tisby, author of the bestselling "The Color of Compromise" and "How to Fight Racism," has extensively discussed, American white Christians being hellbent on white nationalism is nothing new.Writer, farmer and philosopher Wendell Berry called our deep reluctance to acknowledge our racist historyAmerica's hidden wound, and the right is very busy now further covering it up.

But fear not, Republicans Putin has your back. His form of Christianityis said to bemore about power and ideology than theology. And many Americans on the right, who have been encouraged to fear an "elite" left and to hate their political opponents for advocating diversity and inclusion in our pluralistic, multicultural democracy,greatly admire any "strongman"who might make it all go away, with a big assist from alike-minded Supreme Court.

The horrific human scenes of devastation we are witnessing from cellphone and amateur video coming out of Ukraine may be momentarily silencing mostPutin aficionados and apologists in the United States, but don't think for a moment that they don't still love him.

Watching courageous Ukrainians pushing back against the little Russian tyrant, with their lives and homeland on the line, and an empathic and competent American president methodically working with the leaders of a strengthened NATO against him, should make us appreciate the strength inherent in the American promise which is painfully slow, yes, but still a promise, a worthy aspiration of greater justice for all, as well as the creative energy that comes from our blessed diversity of thought and cultures.

I want to feel as proud of my homeland as the Ukrainians obviously do theirs.

That trucker convoy was an AstroTurf bogus protest, but a "freedom convoy" of insurrectionists and QAnoners and authoritarian-loving Putin-stooges in Congress and the media packing up and heading straight out of this country would bethe real thing.

Let's forge a moment of rare bipartisan consensus and make your freedom convoy and ours a reality.

Read more on the Ukraine conflict and how we got here:

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A "Freedom Convoy" we can all support: Send the truckers to Russia! - Salon

The Second Amendment (Amendment II) to the United States Constitution protects the right to keep and bear arms. It was ratified on December 15, 1791, along with nine other articles of the Bill of Rights.[1][2][3] In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home,[4][5][6][7] while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons".[8][9] In McDonald v. City of Chicago (2010) the Supreme Court ruled that state and local governments are limited to the same extent as the federal government from infringing upon this right.[10][11]

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state.[12] Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, "a standing army... would be opposed [by] a militia." He argued that state militias "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms", and assured that "the existence of subordinate governments... forms a barrier against the enterprises of ambition".[13][14]

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification. In United States v. Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."[15] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia".[16][17]

In the 21st century, the amendment has been subjected to renewed academic inquiry and judicial interest.[17] In District of Columbia v. Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense.[18][19] This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.[20][21][19] In McDonald v. Chicago (2010), the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.[22] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare". The debate between various organizations regarding gun control and gun rights continues.[23]

Contents

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the version passed by Congress and put on display and the versions ratified by the states.[24][25][26][27][28][29][30] These differences have been a focus of debate regarding the meaning of the amendment, particularly regarding the importance of what the courts have called the prefatory clause.[31][32]

The final, handwritten original of the Bill of Rights as passed by Congress, with the rest of the original prepared by scribe William Lambert, is preserved in the National Archives.[33] This is the version ratified by Delaware[34] and used by the Supreme Court in District of Columbia v. Heller:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.[35]

Some state-ratified versions omitted the first or final commas, such as Maryland's:[34][36][25]

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The ratification acts from New York, Pennsylvania, Rhode Island, and South Carolina contained only one comma, but with differences in capitalization. Pennsylvania's act states:[37]

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.[38][39]

The ratification act from New Jersey has no commas:[34]

A well regulated Militia being necessary to the security of a free State the right of the people to keep and bear Arms shall not be infringed.

The right for Protestants to bear arms in English history is regarded in English common law as a subordinate auxiliary right of the primary rights to personal security, personal liberty, and private property. According to Sir William Blackstone, "The... last auxiliary right of the subject... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is... declared by... statute, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."[a]

The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament, and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic JamesII was overthrown in the Glorious Revolution, and his successors, the Protestants WilliamIII and MaryII, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm his subjects, after King Charles II and JamesII had disarmed many Protestants that were "suspected or knowne" of disliking the government,[40] and had argued with Parliament over his desire to maintain a standing (or permanent) army.[b] The bill states that it is acting to restore "ancient rights" trampled upon by JamesII, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[41] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia" and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[42]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown, stating: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."[43] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[44]

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evil Councillors Judges and Ministers employed by him did endeavour to subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom (list of grievances including)... by causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and employed contrary to Law, (Recital regarding the change of monarch)... thereupon the said Lords Spiritual and Temporal and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation taking into their most serious Consideration the best means for attaining the Ends aforesaid Doe in the first place (as their Ancestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including)... That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.[43]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[c][d]

The English Bill of Rights includes the proviso that arms must be as "allowed by law". This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[45]

There is some difference of opinion as to how revolutionary the events of 168889 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did "little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic]."[46] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[47] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a subordinate auxiliary right of the subject that was "also declared" in the English Bill of Rights.[48][49]

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[50]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the "rights" argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[51] Without a regular army and police force, it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.[52]

Settlers in Colonial America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[e][f][54][55][56][57][58][59]

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state."[66]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British parliament established an embargo of firearms, parts and ammunition against the American colonies.[67] King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.[68]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[69] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[69] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.[70]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 objecting to the Crown suppression of colonial opposition to the Townshend Acts:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[69][71]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[72] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays' Rebellion.[73] Anti-federalists, on the other hand, took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[74][75] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[76]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison "did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."[77] In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[78]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".[79] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[80] as Alexander Hamilton explained in his Concerning the Militia essay published in 1788:

...it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the Government to form an army of any magnitude, that army can never be formidable to the liberties of the People, while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights, and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.[80][81]

Some scholars have said that it is wrong to read a right of armed insurrection into the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[82][83] Other writers, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. They cite examples, such as the Declaration of Independence (describing in 1776 "the Right of the People to... institute new Government") and the Constitution of New Hampshire (stating in 1784 that "nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind").[84]

There was an ongoing debate beginning in 1789 about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the increasingly violent French Revolution.[85] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[g] or prohibiting citizens from arming themselves.[69] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by ArticleI, Section8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[86][87]

Note: On May 10, 1776, Congress passed a resolution recommending that any colony with a government that was not inclined toward independence should form one that was.[88]

Virginia's Constitution lists the reasons for dissolving its ties with the King in the formation of its own independent state government. Including the following:

* These same reasons would later be outlined within the Declaration of Independence.

A Declaration of Rights. Section 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.[89]

Article 13. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[90]

This is the first instance in relationship to U.S. Constitutional Law of the phrase "right to bear arms".

Article 43. The inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed;[91]

It is relevant that Pennsylvania was a Quaker Colony traditionally opposed to bearing arms. "In settling Pennsylvania, William Penn had a great experiment in view, a 'holy experiment', as he term[ed] it. This was no less than to test, on a scale of considerable magnitude, the practicability of founding and governing a State on the sure principles of the Christian religion; where the executive should be sustained without arms; where justice should be administered without oaths; and where real religion might flourish without the incubus of a hierarchical system."[92] The Non-Quaker residents, many from the Western Counties, complained often and loudly of being denied the right to a common defense. By the time of the American Revolution, through what could be described as a revolution within a revolution, the pro-militia factions had gained ascendancy in the state's government. And by a manipulation through the use of oaths, disqualifying Quaker members, they made up a vast majority of the convention forming the new state constitution; it was only natural that they would assert their efforts to form a compulsory State Militia in the context of a "right" to defend themselves and the state.[93]

Articles XXV-XXVII. 25. That a well-regulated militia is the proper and natural defence of a free government. 26. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature. 27. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.[94]

A Declaration of Rights. Article XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.[95]

Article XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.[96]

Chapter 1. Section XVIII. That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.[97]

A Declaration of Rights. Chapter 1. Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.[98]

In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[102][103]

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal Congress and giving it the power to raise a standing army.[104] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[105]

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[106] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[107][108] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[109] The Constitution was declared ratified on June21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[110] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June8, 1789, and was adopted on December15, 1791.

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[111]

Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[112] though Whitehill's language was never debated.[113]

There was substantial opposition to the new Constitution because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.[114][115]

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.[116]

A foundation of American political thought during the Revolutionary period was concerned about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved... Is it possible... that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?"[117] Noah Webster similarly argued:

Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[13][118]

George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of the British government's efforts "to disarm the people; that it was the best and most effectual way to enslave them... by totally disusing and neglecting the militia." He also clarified that under prevailing practice the militia included all people, rich and poor. "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[13][119]

Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution.[120]

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.[121]

In the slave states, the militia was available for military operations, but its biggest function was to police the slaves.[122][123] According to Dr Carl T. Bogus, Professor of Law of the Roger Williams University Law School in Rhode Island,[122] the Second Amendment was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South's principal instrument of slave control.[124]In his close analysis of James Madison's writings, Bogus describes the South's obsession with militias during the ratification process:[124]

The militia remained the principal means of protecting the social order and preserving white control over an enormous black population. Anything that might weaken this system presented the gravest of threats.

This preoccupation is clearly expressed in 1788[124] by the slaveholder Patrick Henry:

If the country be invaded, a state may go to war, but cannot suppress insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress ... Congress, and Congress only [under this new Constitution; addition not mentioned in source], can call forth the militia.[122]

Therefore, Bogus argues, in a compromise with the slave states, and to reassure Patrick Henry, George Mason and other slaveholders that they would be able to keep their slave control militias independent of the federal government, James Madison (also slave owner) redrafted the Second Amendment into its current form "for the specific purpose of assuring the Southern states, and particularly his constituents in Virginia, that the federal government would not undermine their security against slave insurrection by disarming the militia."[124]

Legal historian Paul Finkelman argues that this scenario is implausible.[65] Henry and Mason were political enemies of Madison's, and neither man was in Congress at the time Madison drafted Bill of Rights; moreover, Patrick Henry argued against the ratification of both the Constitution and the Second Amendment, and it was Henry's opposition that led Patrick's home state of Virginia to be the last to ratify.[65]

Most Southern white men betweenthe ages of 18 and 45 were required to serve on "slave patrols" which were organized groups of white men who enforced discipline upon enslaved blacks.[125] Bogus writes with respect to Georgia laws passed in 1755 and 1757 in this context: "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."[126][127][unreliable source]

Finkelman recognises that James Madison "drafted an amendment to protect the right of the states to maintain their militias," but insists that "The amendment had nothing to do with state police powers, which were the basis of slave patrols."[65]

According to Pennsylvania attorney Anthony Picadio, the Southern slave states would never have ratified the Second Amendment if it had been understood as creating an individual right to own firearms because of their fear of arming free blacks, hence the emphasis on the phrase "well regulated Militia", introducing the Second Amendment.

Firstly, slave owners feared that enslaved blacks might be emancipated through military service. A few years earlier, there had been a precedent when Lord Dunmore offered freedom to slaves who escaped and joined his forces with "Liberty to Slaves" stitched onto their jacket pocket flaps. Freed slaves also served in General Washington's army.

Secondly, they also greatly feared "a ruinous slave rebellion in which their families would be slaughtered and their property destroyed." When Virginia ratified the Bill of Rights on December 15, 1791, the Haitian Revolution, a successful slave rebellion, was under way. The right to bear arms was therefore deliberately tied to membership in a militia by the slaveholder and chief drafter of the Amendment, James Madison, because only whites could join militias in the South.[128]

In 1776, Thomas Jefferson had submitted a draft constitution for Virginia that said "no freeman shall ever be debarred the use of arms within his own lands or tenements". According to Picadio, this version was rejected because "it would have given to free blacks the constitutional right to have firearms".[129]

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[130]

On July 21, Madison again raised the issue of his bill and proposed that a select committee be created to report on it. The House voted in favor of Madison's motion,[131] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[132] On August 17, that version was read into the Journal:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[133]

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around the risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as British forces had attempted to destroy the Patriot militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before "shall not be infringed" and changed the semicolon separating that phrase from the religious exemption portion to a comma:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[134]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a representative explained, this change allowed each amendment to "be passed upon distinctly by the States".[135] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[136]

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated. A motion passed to replace the words "the best", and insert in lieu thereof "necessary to the" .[137] The Senate then slightly modified the language to read as the fourth article and voted to return the Bill of Rights to the House. The final version by the Senate was amended to read as:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The House voted on September 21, 1789, to accept the changes made by the Senate.

The enrolled original Joint Resolution passed by Congress on September 25, 1789, on permanent display in the Rotunda, reads as:

A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed.[138]

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states, having been ratified as a group by all the fourteen states then in existence except Connecticut, Massachusetts, and Georgia which added ratifications in 1939.[139]

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[67] Though sometimes compensated, often these positions were unpaid held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[67] In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[67]

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia... [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[140]

The act also gave specific instructions to domestic weapon manufacturers "that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound."[140] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65percent.[141] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. Though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[142] None is mentioned in the legislation.[140]

The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[143] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[67] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[67] In October, President George Washington and General Harry Lee marched on the 7,000rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[67] Congress did subsequently pass "[a]n act for the erecting and repairing of Arsenals and Magazines" on April 2, 1794, two months prior to the insurrection.[144] Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[142]

In the 20th century, Congress passed the Militia Act of 1903. The act defined the militia as every able-bodied male aged 18 to 44 who was a citizen or intended to become one. The militia was then divided by the act into the United States National Guard and the unorganized Reserve Militia.[145][146]

Federal law continues to define the militia as all able-bodied males aged 17 to 44, who are citizens or intend to become one, and female citizens who are members of the National Guard. The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia.[147]

In May of 1788, Richard Henry Lee wrote in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a "militia":

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Second Amendment to the United States Constitution - Wikipedia

Ronald Reagan once warned that freedom is never more than one generation away from extinction. Because we cannot pass it on to our children in the bloodstream, he said, we must hand it to them with the well-thought lessons of how they can fight for it, protect it [and] defend it, so that they, too, can pass it on to the next generation.

Tragically, our workone of us as a law professor and one a constitutional lawyerhas shown us that the values of a free societythe rule of law, self-determination, tolerance and accountability, to name a feware in some disrepair.

Several influential forces, including many educators and members of the media, have taught recent generations that freedom is not always worth defending; instead, they maintain that even our right to self-preservation, via our Second Amendment rights, is just another antiquated value to be sacrificed for notions of security, equity and statism.

Thus, it is more important than ever to ensure that the young people in our lives are taught the fundamentals of American freedom. To that end, here are 10 lessons that all Americans should know about their rights.

1. We all have natural rights, which are granted by our Creator, not our government.Everyone is born with natural rights, which are inherent in all of us simply because we are human. These universal and immutable rights include life, liberty, free speech, freedom of conscience, the right to self-defense and the right to property, among others. Everyone is endowed with natural rights regardless of race, religion, class or other category. As George Mason put it: All men are born equally free and independent, and have certain inherent natural rights, of which they cannot by any compact deprive or divest their posterity.

2. Our government exists to protect our natural rights.The Declaration of Independence famously declares that all men are created equal and are endowed by their Creator with certain unalienable Rights, such as Life, Liberty and the pursuit of Happiness. It is to secure these rights, that Governments are instituted among Men, deriving their just powers from the consent of the governed. So, our government exists to protect our rights, and must protect everyones rights equally. Moreover, far from a government that grants rights to the people it governs, it is the American people, through the consent of the governed, that grants the government its powers. And not any powersonly just powers. Such powers do not include the authority to infringe on natural rights, even if a majority of the people consent. That is clear because the whole purpose of government is to secure these rights.

3. The U.S. Bill of Rights codified preexisting rights.The Second Amendment codified a right that already existedthe Second Amendments text does not create a right, but instead declares that the preexisting natural right shall not be infringed. Thus, as the U.S. Supreme Court has recognized, this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. Consequently, repealing the Second Amendment would accomplish little under the original understanding of the American system of government. That said, there is no doubt that the goal of the anti-rights movement is to disregard the original understanding of rights in America, repeal the Second Amendment and eliminate gun ownership; as a result, despite the preexisting nature of the right, we can never relent in our fierce defense of it. The same applies to the rest of the U.S. Bill of Rights, including parts that are less important to us individually.

4. The Constitution is an anti-majoritarian document.The purpose of a constitution is to restrain government from imposing a tyranny of the majority, which, according to philosopher John Stuart Mill in his famous work, On Liberty, operat[es] through the acts of the public authorities.

Legislatures are particularly susceptible to majoritarian pressures because they are elected and responsible for making (rather than enforcing) laws. In James Madisons words from Federalist No. 10, the Constitution ensures that government cannot serve the superior force of an interested and overbearing majority at the expense of the rights of the minority. Whether the right protected is equal protection, unpopular speech or the right to keep and bear arms, as the U.S. Supreme Court said in District of Columbia v. Heller (2008), the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

5. No onejudges or otherwiseshould rank rights.Rights are valuable for their own sake. Ranking them is necessarily a majoritarian act because it requires making a policy choice about whether one right is more valuable than another. Whenever rights are chosen for special (or especially bad) treatment by the legislative, judicial or executive branch, the result will be that disfavored groupsthose wishing to exercise disfavored rightswill be on the losing end of any government-decreed rights hierarchy.

6. If the Constitution doesnt mean what it was meant to say, it doesnt mean anything.If judges have license to enforce their (or what they perceive to be societys) norms when interpreting the U.S. Constitution, it can no longer serve as an effective constraint on government or the majority.

Take the 1934 case of Home Building & Loan Association v. Blaisdell, in which the plaintiff challenged a Minnesota law creating a moratorium on mortgage foreclosures. Plaintiff brought its claim under the Contracts Clause of the U.S. Constitution, which declares that No State shall ... pass any ... Law impairing the Obligation of Contracts. The U.S. Supreme Court acknowledged that evidence presented in the case showed that it was this type of debtor-relief legislation that the Contracts Clause intended to prohibit. Nevertheless, it upheld the law, declaring: It is no answer to say ... that what the provision of the Constitution meant to the vision of [the Founding] it must mean to the vision of our time. In other words, the Court said that the Contracts Clause did not today prohibit the very government action that it was intended to prohibit when it was enacted. It is difficult to see how the Clause could mean anything under such a reading.

7. For more liberty and better representation, most decisions should be made at the state and local levels.The American system of government is designed to ensure that the decisions impacting your life are made as locally as possible. Thomas Jefferson argued that generalising & concentrating all cares and powers into one body ... has destroyed liberty and the rights of man in every government which has ever existed under the sun. Thus, Jefferson explained, the way to have good and safe government, is not to trust it all to one [central government]; but to divide it among the many. [I]t is by dividing and subdividing these republics from the great National one down thro all its subordinations, until it ends in the administration of every mans farm and affairs by himself ... that all will be done for the best.

The more centralized government power becomes, the less representative it can be of a diverse people. This is harmful to individual liberty and unity among the states. According to Jeffersons vision of the Constitution, our General Government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants.

In Federalist No. 45, Madison explained how this principle applies to the Constitutions balance between state and federal power. While the powers delegated by the proposed constitution to the federal government, are few and defined, those that remain in the state government, are numerous and indefinite. While federal powers will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce, the powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state. Therefore, [t]he operations of the federal government will be most extensive and important in the times of war and danger; those of the state governments in times of peace and security.

The federal government has grown far beyond what the Founders envisioned. Its operations are extensive during times of peace and security, and they affect countless aspects of our daily lives. The larger the federal government becomes, the less liberty each American has, because the governments powerits ability to restrict or require certain behaviorsnecessarily comes at the expense of individual choice.

8. We have equal rights, which is not, and should not be, a guarantee of equal results.A central purpose of our government is to ensure equal treatment under law, regardless of occupation, gender, race or religion. This does not, however, translate to equal results. Individuals have different skills, motivations, goals and values. They will inevitably reach different outcomes in a free society, even when they receive equal treatment. Thus, Alexander Hamilton explained that inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. It is governments role to protect individuals rights so that they may pursue happiness; it is not governments job to guarantee success in achieving it.

9. The Constitution is a tyranny-control document.The United States government was not established by a conquering army, dictator or emperor for the purpose of retaining authority over the people it rules. George Washington led America in defeating a tyrant, andto much of the worlds surprisehe sent his army home and resigned his military commission when the War for American Independence ended. He did not want to be president, though some people were actually willing to make him king. But what of future governments?

Americas Founders, being students of history, were acutely aware of the long history of governments turned despotic, as well as the ability of power to corrupt. They therefore built a constitution that made it more difficult for the government to turn on its people. Structural limits on government, like separation of powers among the branches of government and the division of power between federal and state governments, ensure that it is difficult for power to coalesce in one place. Individual rightslike the right to speak freely in criticizing the government, the right to bear arms, the right to a jury trial and prohibitions against bills of attainder (which prevents legislatures from declaring someone a criminal) protect individuals from overbearing government behavior and enable them to counteract it.

10. The American system of government calls for the resistance to tyranny.Fortunately, Americas founders erected bulwark upon bulwark against tyranny. But when all else fails, the Declaration of Independence makes clear that whenever any Form of Government becomes destructive of [inalienable rights], it is the Right of the People to alter or to abolish it, and to institute new Government.

This echoed both John Locke and George Mason, who inspired Jefferson. Locke argued that by violating natural rights, government officials forfeit the power the people had put into their hands and it devolves to the people, who have a right to resume their original liberty and instate a new government.

Likewise, The Virginia Declaration of Rights, drafted by George Mason, provided that the people have an indubitable, inalienable, and indefeasible right to reform, alter, or abolish a government that fails to serve and protect the people.

Yet common sense, and history time and again, prove that this last resort is available only where the people are armed. As former Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit said, the simple truthborn of experienceis that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South ... .

All too many of the other great tragedies of historyStalins atrocities, the killing fields of Cambodia, the Holocaust, to name but a fewwere perpetrated by armed troops against unarmed populations.

Judge Kozinski then calls the Second Amendment a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed.

This is an extreme that should never be allowed to happen. A key to preventing such an extreme is having an armed populace who, by being armed, act as a deterrent to tyranny.

George A. Mocsary is a professor of law at the University of Wyoming College of Law and adjunct scholar at the Firearms Policy Coalition. Joseph Greenlee is the director of constitutional studies at the Firearms Policy Coalition.

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10 Truths About The Basis of Our Second Amendment Freedom That, Too Often, Are Not Being Taught | An Official Journal Of The NRA - America's 1st...

If you held any doubts about the importance of the 2nd Amendment the war in Ukraine should serve as a prime example as to why the "right to keep and bear arms" is absolutely vital to the security and peace of the Nation. It may be too little too late, but Ukrainian President Volodymyr Zelensky made the announcement yesterday that all citizens who wish to arm themselves in defense of the country may do so.

More than that, the Ukrainian government/military would supply the weapons. At this time thousands upon thousands of Ukrainians are arming themselves and are ready to fight alongside their military in defense of their country. Had this right been protected by a constitution and in place prior to the invasion they would have been armed already and better prepared to defend their lives and country. By loosening the firearm laws in the country the Ukrainian government has at least given their citizens and country a fighting chance.

To those who doubted the meaning, intent, or reasoning of the 2nd Amendment what's happening in Ukraine should settle that argument. An armed citizenship is near impossible to conquer and control. In the United States, an enemy foreign or domestic would have to get through all of our military branches, all the reserves and guard units along with an armed populace in order to even occupy the country, much less conquer it.

It's frustratingly funny that people, "anti-gun" people, always remark that there's no need for citizens to have arms and that the 2nd Amendment is outdated. They continually say it's ridiculous to think that a private citizen with a gun could do much in defense of the country. Well, oddly enough that's exactly how our country began. A group of armed men tired of the tyranny they were living under got together and fought back, with arms. I'm sure the British at the time thought like our "anti-gun" crowd, and like them were dead wrong.

Within minutes of the Russian invasion, the Ukrainian government immediately put the word out about arming its citizens. So to those who constantly state that it's the government's job to protect and defend us, it clearly shows without us, it's a non-reality. Relying solely on others for protection is to be utterly defenseless and victim-bound. Without the means to protect yourself and others, you are at the mercy of those who would seek to do you harm and even those sworn to protect you. This is the heart of the Second Amendment.

The 2nd Amendment has never been about hunting, or really even self-defense. It's about having the means to protect our freedom, liberties, and the ability to use arms against tyranny, both foreign and domestic.

That's what it's all about and what we're seeing in Ukraine definitely affirms this, at least to those who are paying attention anyway. Hopefully, some lessons will be learned and those who in the past wished to eliminate or further restrict our rights to keep and bear arms will better understand the intent of our Founding Fathers, the architects of freedom and framers of our constitution had in mind when writing it.

Lastly, the Bill of Rights and U.S. Constitution DOES NOT grant rights. It recognizes and upholds the rights that were given to us at birth by our creator, which is why they're called "Inalienable Rights."

The primary purpose of the Consitution and Bill of Rights is to restrict the government's "infringement" of rights, which preexisted the documents in the first place. So any argument about changing any of the amendments in the Constitution is completely invalid. Our rights aren't given to us by the government, we were born with them. This means you CAN NOT take away what you haven't given!

While Oklahoma is well known for its beauty and friendly people there are a few places in the Sooner State you'll want to avoid. These are the most terrifying towns and scary cities in the state. It's not that they're bad places, or plagued with crime and other negative factors. The towns and cities below have one single thing in common. They all have active paranormal and supernatural phenomenons. From ghost stories to urban legends and tragic tales. A lot of these places are well known to those who live in Oklahoma and even all over the nation. If you're looking to get scared or do a little ghost hunting you can start with the list below.

When it comes to ghost tales and hauntings Lawton, Fort Sill has more than a few scary stories to tell. The most active hauntings and paranormal/supernatural occurrences that have been reported seem to be centered around downtown Lawton. If you've lived here a while I'm sure you've heard a few of these terrifying tales yourself. If not check out the photo gallery below of the dreadful downtown hauntings of Lawton, OK.

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War in the Ukraine Has Strengthened the 2nd Amendment in the US - KLAW101

Numerous gun bills are slated for action this week in the Volunteer State. It is important that NRA Members and Second Amendment supporters stay vigilant and aware as hearings proceed.

The below pro-gun measures will be considered in the House Civil Justice Committee this week:

Pro-Gun

HB 2330strengthens the right-to-carry of Tennessee residents by turning the current enhanced handgun carry permit into a lifetime permit, while eliminating the existing lifetime handgun carry permit framework. In short, it would turn the standard permit into a lifetime permit and get rid of the existing lifetime permit language. This would have distinct benefits:

HB 1735lowers the age at which a person could exercise their Right-to-Carry without a permit to 18, regardless of military background. It would also lower the age to obtain an enhanced handgun carry permit to 18.

HB 1898alters the enhanced handgun permit carry statute (T. C. A. 39-17-1351), the temporary handgun carry permit statute (T. C. A. 39-17-1365), and the concealed handgun carry permit statute (T. C. A. 39-17-1366) to provide that these permit holders may carry afirearmfor self-defense rather than just a handgun. House Bill 1898 has yet to be passed out of the House Civil Justice Subcommittee and is scheduled for a hearing tomorrow.

*****

The below anti-gun measures are all scheduled for committee hearings in the following days. Those hearings are outlined below:

Anti-Gun

HB 2087creates a Class C misdemeanor for storing a firearm or ammunition in an unattended motor vehicle or boat unless the firearm or firearm ammunition is kept from ordinary observation and locked within the trunk, utility or glove box, or a locked container securely affixed to the motor vehicle or boat. The legislation would also heighten the existing storage requirement under the parking lot statute. HB2087 also creates a lost or stolen firearm reporting requirement whereby a person would be required to report a lost or stolen firearm within 24 hours of discovering it missing. A violation would be a Class C misdemeanor. Scheduled for a hearing in the House Criminal Justice Subcommittee on Wednesday, March 2.

HB 2724 repeals Tennessees protections for those storing or transporting their firearm while using public or private parking areas. Scheduled for a hearing in the House Civil Justice Subcommittee tomorrow.

HB 1588 is an anti-gun measure that allows for the revocation of ones Second Amendment rights without proper due process of law being followed. So-called red flag laws are dangerous in their disregard for the process that must be followed to ensure that constitutional rights are not wrongfully revoked. Scheduled for a hearing in the House Children and Family Affairs Subcommittee on Wednesday, March 2.

Again, please stay-tuned to NRA-ILA Alerts for more information as these measures are considered and receive committee action. Click the Take Action button above to contact members of the House Children and Family Affairs Subcommittee and ask them to OPPOSE House Bill 1588.

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Tennessee: Committees to Act on Multiple Gun Bills This Week - NRA ILA

Timebombs are ticking all across the United States, and no one seems inclined to do anything about it. Private armies, who call themselves militia groups, routinely stockpile firearms, conduct training in combat tactics, and engage in military drills. According to the U.S. intelligence community, these paramilitary organizations now pose the greatest domestic terrorism threat to the U.S. government. Yet, American authorities have largely allowed this conduct to occur undeterred. The time has come to defuse these bombs.

In June 2021, the Biden administration issued the nations first-ever National Strategy For Countering Domestic Terrorism. The strategy makes some important recommendations, but one additional step that seems urgently needed is a plan to address the threat posed by militia violent extremists. These are members of private paramilitary organizations that have no legal authority. In recent years, private militias have become more visible and more bold. Social media and access to powerful weapons have enabled these groups to join forces to create a deadly risk to Americas government and public safety. To reduce the threat of domestic terrorism by militia violent extremists, two important measures are needed: first, enforce existing state laws that limit militia activity; and second, enact new federal legislation to permit federal law enforcement to neutralize this grave threat.

The State of the Threat

The Southern Poverty Law Center assesses that there are 169 private paramilitary groups operating in the United States. Used correctly, the term militia refers only to residents who may be called up by the government to defend the United States or an individual state. Private groups that call themselves militias, however, operate without any government authority. They have appropriated a term that invokes the revolutionary origins of America and the heroics of citizen soldiers to falsely legitimize their existence. According to the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, all 50 states prohibit private, unauthorized groups from engaging in activities reserved for the state militia, including law enforcement activities. Private paramilitary groups do not defend their country in the manner of a national guard and the ones operating in the United States do not but instead act as vigilantes against government officials to achieve their favored political ends. According to the Anti-Defamation League, the militia movement grew in the United States following the election of President Barack Obama and the 2008 financial crisis. Examples include the Three Percenters, who emerged in 2008, proclaiming themselves patriots who protect Americans from government tyranny, and the Oath Keepers, founded in 2009, who recruit former members of law enforcement and the military to build a network of state militias.

In recent years, individuals affiliated with paramilitary organizations have been charged with violent crimes. Some of the defendants involved in the Jan. 6, 2021, attack on the U.S. Capitol were members of private paramilitary groups. Most notably, members of the Oath Keepers were charged in January 2022 with seditious conspiracy and other offenses for agreeing to forcefully oppose the lawful transfer of presidential power. In 2020, the Department of Justice charged members of a private militia group, who call themselves the Wolverine Watchmen, with conspiring to kidnap and kill Michigan Gov. Gretchen Whitmer over her executive orders on COVID-19 policy. Heavily armed paramilitary groups contributed to the violence at the 2017 Unite the Right rally in Charlottesville, and created confusion for law enforcement by making it difficult to know whether armed individuals wearing combat boots and tactical gear were sworn officers or protestors.

Social media makes it easy for violent extremists from around the United States to communicate with each other to plan attacks against government authority. Easy access to assault rifles and other weapons of war makes the threat potential deadly.

The State of the Law

All 50 states have laws that prohibit private militia activity. In 29 states, laws prohibit private military groups from organizing without authorization from the state government. These statutes often specifically prohibit the parading or drilling in public with firearms. In 25 states, anti-paramilitary activity laws bar teaching, demonstrating, instructing, training, and practicing in the use of firearms or explosives. Laws in 17 states prohibit falsely assuming the duties of law enforcement by engaging in the functions of police officers, or wearing uniforms of the U.S. military or close imitations.

For example, in Nevada, where the Oath Keepers were founded, state law prohibits any body of individuals other than municipal police, university or public school cadets or companies, militia of the State or troops of the United States, to associate themselves together as a military company with arms without the consent of the Governor.

These laws are consistent with a longstanding Supreme Court precedent that states may prohibit individuals from associating together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law. While the First Amendment right to free association permits like-minded individuals to gather to express ideas, states may ban paramilitary conduct. Likewise, the Second Amendment offers no safe harbor, referring to a well regulated Militia, which has been traditionally limited to official national guard units subject to the oversight of public officials.

Despite the growing threat posed by private militia groups, their illegal activity is rarely prosecuted. Private militias in some regions have become so commonplace that their activity is accepted as normal. The National Police Foundation has warned that these groups sometimes align with local police departments or sheriffs offices, dangerously blurring the lines between authorized law enforcement and private citizens. Some groups, such as the Oath Keepers, actively recruit former police officers and members of the military. The Brennan Center for Justice has documented links between law enforcement and far-right militant groups in 14 states. In Michigan, an elected sheriff appeared onstage at a 2020 rally opposing COVID-19 shutdown orders alongside a militia member who was later charged, along with other militia members, with conspiracy to commit kidnapping the governor and other crimes. The sheriff publicly defended them, suggesting that their conduct was perhaps an attempt to carry out a lawful citizens arrest. It has been suggested by a national security expert that one reason these anti-militia laws are not enforced is that prosecutors are unaware that they are on the books. The National Police Foundations research suggests another possible explanation for a lack of law enforcement action against paramilitary groups in some instances, noting that some officers even engage with [militia members] in a way that gives an appearance of mutual support.

The Proposal

An effective strategy to counter domestic terrorism should include enforcing existing laws that regulate paramilitary activity conducted by private militia groups, as well as enacting new federal legislation. Vigorous enforcement of state laws would disrupt existing groups and deter individuals from engaging in prohibited paramilitary activity. But the inconsistent patchwork of state laws alone is not enough in a society with easy interstate communication and travel. In addition to enforcing state laws that are already on the books, Congress should consider federal legislation to address unauthorized paramilitary activity.

One proposal to strengthen the U.S. governments ability to counter violent militia extremism has been offered by Prof. Mary McCord at Georgetown University Law School. McCord is the former acting assistant attorney general for the National Security Division at the U.S. Department of Justice. In congressional testimony about the Jan. 6 attack, McCord outlined a proposal that would permit civil injunctive relief (i.e. permitting the government to file a civil lawsuit against militia members) and asset forfeiture for paramilitary militia activity. Prohibited conduct could be similar to state laws that ban private groups from drilling or parading with firearms in public, falsely assuming the duties of law enforcement by engaging in the functions of police officers, or wearing uniforms of the U.S. military or close imitations. Faced with a preponderance of evidence against individuals engaged in such prohibited activity, a judge could enter an order prohibiting them from continuing to engage in this conduct. Forfeiture laws permit the government to seize assets that are used as instrumentalities of illegal activity. In the case of illegal militia activity, this could be weapons, tactical gear, and uniforms.

In addition to permitting the government to seek civil relief, McCords proposed federal legislation would include a criminal provision that would prohibit persons, while armed, from: publicly patrolling, drilling, or engaging in paramilitary techniques; asserting authority over others without legal right; intimidating others in the exercise of their constitutional rights; or training for any of these acts. Such laws would enable law enforcement to disrupt militia violent extremists without waiting for them to carry out a deadly attack.

State law enforcement can most certainly bring charges for violent crimes, but they are less equipped than their federal counterparts to prevent attacks. State agencies often lack the resources and authorized investigative techniques to undertake the kind of long-term efforts needed to dismantle criminal organizations. In addition, with advancements in technology, militia activity is no longer confined inside state lines. Federal law enforcement, in contrast, is well-equipped to conduct the types of proactive investigations that would be necessary to disrupt militia groups before they attack. The same techniques that federal law enforcement has used for decades against the Mafia and international terrorist organizations would be available: wiretap orders, undercover agents, informants, and the grand jury process to question reluctant or fearful witnesses. With a statute to authorize the opening of an investigation, federal agents could work to neutralize the threat of private militia groups without having to wait for an attack to occur. And, importantly, their investigative and charging authorities extend to anywhere in the United States.

Constitutional Considerations and Political Obstacles

A number of reasons explain why militia groups have been permitted to exist and grow unimpeded. One is the concern that overreach by law enforcement could infringe upon civil rights and civil liberties. America has previously seen civil liberties abused in the name of protecting security, from the internment of Japanese-American citizens during World War II, to the FBIs abuse of its authority to disrupt political movements in the 1960s and 1970s. For example, congressional investigations found that the civil rights movement and Vietnam War protests during the 1960s were targets of government abuse: The Church Committee, named for U.S. Senator Frank Church, found that, in the name of protecting national security, the FBI had harassed civil rights and anti-war activists and spread disinformation about them to disrupt their activities and smear their reputations.

Laws governing domestic terrorism present unique legal concerns. For example, federalism raises questions about the extent to which Congress can outlaw acts of domestic terrorism or whether that belongs in the exclusive domain of the states. But this concern should not affect the enforcement of state laws, and with sufficient factual findings by Congress, federal legislation could be enacted within Congresss express or implied powers under the Constitution. For example, findings of interstate communication between militia members, or transport of weapons across state lines, would provide sufficient bases for congressional action under the Commerce Clause. Indeed, the recent indictment against the Oath Keepers alleged that the group used messaging applications and transported weapons across state lines in their preparations to attack the U.S. Capitol on Jan. 6 and their subsequent planning to obstruct the lawful transfer of presidential power.

The First Amendment right to free speech is also a potential concern. You couldnt charge someone with a crime for making a general statement of an intention or desire to fight the government for their rights, for example; the charges would not withstand judicial scrutiny. Divining exactly where the line falls between illegal conduct and constitutionally protected speech is not an exact science, but legislation focused on conduct, as opposed to ideas, is permissible. For example, existing federal statutes prohibit inciting violence, threatening to kill others, and communicating to mobilize violent plots. These statutes tend to be interpreted narrowly so as to protect constitutional rights. Similarly, statutory language addressing militia violent extremists would need to be appropriately cabined to prevent abuse of the law to attack political movements no small task.

The First Amendment right to free association is also implicated in domestic terrorism cases. Though it is not textually articulated in the First Amendment, the Supreme Court has recognized a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, education, religious, and cultural ends. This implied right to free association makes it difficult to disrupt private militia groups or protests that pose threats of violence, such as the Unite the Right rally that took place in Charlottesville in 2017. A federal statute could not prohibit groups from gathering, but it could prohibit them from engaging in certain conduct, such as military drilling or parading with firearms.

Another potential obstacle to a federal statute addressing militia violent extremism is the Second Amendment, though the actual legal impediment the Second Amendment presents is overblown. Gun enthusiasts and lobbyists who take an absolutist view of the Second Amendment may object to any new law that regulates the use of firearms, despite the Supreme Courts language in District of Columbia v. Heller that the right secured by the Second Amendment is not unlimited, and is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, Congress prohibits the possession of firearms in furtherance of violent crimes and drug trafficking offenses. Likewise, it could prohibit the unauthorized use and carrying of firearms by civilians while parading or drilling in military tactics.

Opponents may argue that the Second Amendment protects militia activity itself because of its language regarding a well regulated Militia. Yet, the Second Amendment offers no refuge to groups that are privately organized and accountable to regulated by no one. As noted by McCord, regulated means regulated by the government. In the United States, militia refers to official national guard units subject to the oversight of public officials. Since 1886, the Supreme Court has held that the government may prohibit personal military groups as necessary to the public peace, safety, and good order.

The Fourth Amendments guarantee against unreasonable searches and seizures is also implicated whenever law enforcement is called upon to conduct investigations. For foreign intelligence collection, a court has recognized a special-needs exception to the warrant requirement when investigations are directed at foreign powers reasonably believed to be located outside the United States. Since domestic terrorism cases do not qualify for that exception, investigations would be subject to the same safeguards and judicial oversight that are used in all other criminal cases. New federal laws would permit the FBI to use sensitive investigative techniques, such as wiretaps, cell site location information, informants, undercover agents, and sting operations. But the targets of these domestic terrorism investigations would still receive more protection than those provided to targets of international terrorism investigations.

In addition to civil liberties concerns, another obstacle to addressing militia violent extremists is political will. Politicians may tend to shy away from new laws that will be controversial and will attract opposition from the gun lobby and the far-right. In addition, a new law that seeks to disarm militia groups is the very doomsday scenario for which some groups claim they have been preparing. According to a report issued by the Anti-Defamation League, The combination of anger at the government, fear of gun confiscation and susceptibility to elaborate conspiracy theories is what formed the core of the militia movements ideology.

The Charge

Legal efforts to deter private militia activity could trigger a violent response. And yet, we cannot let fear of opposition prevent those charged with protecting national security and public safety from taking the steps necessary to do so. Militia violent extremists pose an urgent threat to the U.S. government and its citizenry. They have already used force to disrupt the peaceful transfer of power on Jan. 6 and conspired to kidnap Michigans governor, according to filed indictments. Furthermore, private militia members contributed to violence at the 2017 Unite the Right rally in Charlottesville. Two measures can help to reverse this trend. First, state prosecutors should immediately begin enforcing laws already in place. Second, Congress should pass federal legislation to give federal law enforcement the tools it needs to prevent these groups from preparing for attacks through civil injunctions, asset forfeiture, and criminal prosecution.

Without intervention, we can expect more violence to come.

Barbara McQuade is a professor from practice at the University of Michigan Law School. She served as United States Attorney for the Eastern District of Michigan from 2010 to 2017, and as co-chair of the national interagency Domestic Terrorism Executive Committee from 2015 to 2017.

Photo by Victoria Pickering

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'A well-regulated Militia': The Laws that Can Counter Domestic Terrorism - War on the Rocks

BOCA RATON, Fla. U.S. Rep. Ted Deutch, D-Fla., announced Monday he will not seek re-election representing the state's 22nd congressional district.

Deutch has served in the House since 2010 for the district that includes northern Broward County and southern Palm Beach County.

"After serving the public for more than 15 years, I have decided I will not seek re-election this November. Public service was instilled in me by my father who earned a Purple Heart in the Battle of the Bulge, and it has been a tremendous privilege to serve the people of Palm Beach and Broward Counties in Congress since 2010," Deutch said. "I am incredibly grateful to my constituents for their support and friendship."

He has been the chair of the House Committee on Ethics, Chair of the House Foreign Affairs Subcommittee on the Middle East, North Africa, and Global Counterterrorism and a senior member of the House Judiciary Committee.

During his time in office, Deutch has been a proponent for gun control, advocating that the Second Amendment has limits.

"In my seven terms in Congress, I have worked hard and tried to find common ground. I'm proud of my work to make our communities safer from gun violence, strengthen Social Security and protect our most vulnerable seniors, and ensure Holocaust survivors can live in dignity," Deutch said.

The congressman said the Parkland shooting four years ago had a deep impact on his career.

"Our community was profoundly changed on February 14, 2018. Seventeen students and teachers of Marjory Stoneman Douglas High School were killed that day, and I have tried every day since to be there for their families and to help them honor the memories of their loved ones in all the ways they are working to make our schools and community safer," Deutch said. "I have also tried to support the survivors in any way I can, though it is their powerful voices that have helped create desperately needed change. The Parkland families and student survivors inspire me every day."

Deutch said he has accepted an offer to serve as the next chief executive officer of the American Jewish Committee.

"I will be forever grateful for the opportunity you have given me to serve our community and to serve our country. I have been touched and inspired by so many people I have been privileged to meet. I have seen the good that can be accomplished when we work together, and I am forever hopeful about our future. Serving as your representative has been the greatest honor of my life," Deutch said.

American Jewish Committee said that Deutch was unanimously selected by the executive council of the AJC after an extensive national search.

Deutch will succeed David Harris, who has led the AJC since 1990.

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US Rep. Ted Deutch won't seek re-election for Florida's 22nd congressional district - WPTV.com