ACLU (Arms-Confiscating Lies Unmasked)

David Codrea

Originally published on GunTruths.com (1999)

 American Civil Liberties Union of Southern California Executive Director Ramona Ripston claims the 2nd Amendment does not guarantee an individual right to keep and bear arms, but rather, was only intended to provide for the right of states to maintain a militia. I challenged her to prove this. Since her position was based on the concept of original intent, my challenge centered on that issue, i.e., I asked her to provide evidence based on writings from America's Revolutionary era to substantiate her claim. The following is her response:

Dear Mr. Codrea:

As you requested, I am enclosing copies of information the ACLU of Southern California has published on the Second Amendment.

Sincerely,

Ramona Ripston

Executive Director

encl.

Enclosure #1 is a fold-out brochure claiming "When the founders of the United States of America (inset portraits of Jefferson and Madison) wrote the Second Amendment...(photo of semiautomatic handgun aimed menacingly at reader)..this is not what they had in mind."

Enclosure #2 is the Winter, 1994 (Vol. 68, No. 8) edition of Open Forum, with the lead story "This Is Not a Well-Regulated Militia- Debunking the Myth About the Second Amendment and Guns," (accompanied by photo of shadowy figure aiming a handgun) by Chris Sprigman.

For the purpose of maintaining the integrity of the challenge, ACLU materials dealing with the issue of intent will be presented in their entirety. Other materials not dealing with the specific issue of intent (i.e., non-responsive to the challenge) may be abbreviated or not presented at all, as appropriate. For full text of both documents, readers are encouraged to contact the ACLU of Southern California at 1616 Beverly Blvd., Los Angeles, CA 90026.

One other point, and then we'll proceed with Ms. Ripston's "evidence" of intent. In order to address her claims as they are raised, analysis and commentary will follow. Let's begin with her letter:

I never asked her for "information the ACLU... has published on the Second Amendment." I asked for evidence that the leaders of the United States' founding era did not intend to protect the right of individual citizens to keep and bear arms from government infringement. As for the pictures in the fold-out and newsletter of a threatening, shadowy gun wielder, one must agree with the ACLU when it claims this is not what the Founders had in mind when they wrote the Second Amendment. Men with the courage to pledge their "Lives... Fortunes and...sacred Honor" to the cause of freedom would have been appalled to see criminals brazenly victimizing citizens disarmed by public policy.

As John Adams observed, "Arms in the hands of individual citizens may be used at individual discretion...in private self-defense." Or consider the following, from a newspaper article in the November 1, 1787 Boston Independent Chronicle: "...that it was in the law of nature for every man to defend himself, and unlawful for any man to deprive him of those weapons of self-defence."

Isn't it revealing that the ACLU, through manipulative imagery, associates gun ownership and use with criminal activity only, disregarding the overwhelmingly law-abiding nature of armed citizens? Might there be a reason they want the public to think of you as a criminal?

ACLU: "Q- The Second Amendment says 'the right of the people to keep and bear arms shall not be infringed.' Doesn't it mean just that?

A- There is more to the Second Amendment than just the last 14 words. Most of the debate on the Amendment has focused on its final phrase and entirely ignores the first phrase: 'A well regulated militia, being necessary to the security of a free State...' And to dissect the Amendment is to destroy its context.

While some scholars have suggested that the Amendment gives individuals the constitutional right to bear arms, still others have argued for discarding the Amendment as irrelevant and out of date.

However, the vast majority of constitutional experts agree that the right to keep and bear arms was intended to apply only to members of state-run citizen militias."

DC: The ACLU places unwarranted emphasis on the Amendment's subordinate preamble while providing no evidence for its opinions. In his book Stopping Power: Why 70 Million Americans Own Guns, author J. Neil Schulman asked two of the country's foremost English usage experts to interpret the meaning of the Second Amendment. Their independently-derived conclusions supported "what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right."

Perhaps it would be instructive to look at intellectual precedents of the Amendment, and to realize that their development into final form was an evolutionary process, subject to debate and revision. This also provides insight into what was common understanding at the time.

Article 17 of the North Carolina Convention's August 1, 1788, Bill of Rights stated in part: "That the people have the right to keep and bear arms; 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..."

Similarly, Article XVII of the Rhode Island Convention, May 29, 1790, declares: "That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defence of a free state..."

That the "body of the people" refers to individual citizens should be evident to even the most die-hard revisionist. Still, lest there be any doubt as to what the Founders intended, consider this analysis of Constitutional Amendments from "A Pennsylvanian," by Tench Coxe in the June 18, 1789 Philadelphia Federal Gazette: "...the people are confirmed in the next article in their right to keep and bear their private arms."

Or contemplate the following from Fisher Ames in his June 12, 1789 letter to George Richards Minot: "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people." In a letter to Thomas Dwight the day before, Ames unconsciously demonstrated the "no-brainer" obviousness of this fact with his admission "Oh! I had forgot, the right of the people to bear arms." That this right applies to individuals was not only the common understanding, it was taken for granted.

As for the Amendment being "irrelevant and out of date," that most arguable of opinions is not germane to the discussion. Nor are the opinions of "the vast majority of Constitutional experts" subscribing to the collective rights theory, although I would like to know just who these "experts" are. Sarah Brady? Josh Sugarmann? Dennis Henigan? You see, the published law reviews by constitutional scholars have overwhelmingly supported the Insurrectionary Theory (referred to by academics as the "Standard Model") of the Second Amendment. As Tanya Metaksa of the NRA observed, "even the American Bar Association published in 1965 an award-winning article titled 'The Lost Second Amendment,' which concluded that the Second Amendment guaranteed an individual right."

ACLU: "Q- If it doesn't guarantee the right to own a gun, why was the Second Amendment included in the Bill of Rights?

A- When James Madison...proposed the Bill of Rights in the late 1780s, people were still suspicious of any centralized federal government. Just 10 years earlier, the British army had been an occupying force in Colonial America— enforcing arbitrary laws decreed from afar.

After the Revolutionary War, the states insisted on the constitutional right to defend themselves in case the fledgling U.S. government became tyrannical like the British Crown. The states demanded the right to keep an armed 'militia' as a form of insurance."

DC: Again, the ACLU has failed to provide a single reference to actual words stated or written by one of the Founders. Still, their answer is partially correct as it applies to why states demanded retention of their militias, although the implication that this would only be applicable while the federal government was in its "fledgling" state is unfounded, and implies validity to the ACLU's assumption that the Second Amendment is now irrelevant.

The deception here is in the question, for the assumption is that individuals do not have a right to keep and bear arms. And again, if the purpose of this exercise is to heed the intent of the Founders, we would do well to heed Zacharia Johnson, from the June 25, 1787 Virginia Convention debates: "The people are not to be disarmed of their weapons. They are left in full possession of them."

Or consider Samuel Adams, who stated unequivocally, "The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens from keeping their own arms..."

And, since the ACLU chose to invoke Madison, it is up to them to explain what he had in mind in Federalist No. 46, when he described European governments as "afraid to trust the people with arms," and lauded "the advantage of being armed, which the Americans possess over the people of almost every other nation."

This could go on and on. Reference The Federal Farmer, Letter XVIII, May, 1788: "...it is essential that the whole body of the people always possess arms...," or "Foreign Spectator," from the November 28, 1788 Philadelphia Federal Gazette: "...that no law shall be passed for disarming the people, or any of them, unless for crimes committed, or real danger of public injury from individuals."

ACLU: "Q- What exactly is 'a well-regulated militia?'

A- Militias in 1792 consisted of part-time citizen soldiers organized by individual states. Its members were civilians who kept arms, ammunition and other military equipment in their houses and barns—there was no other way to muster a militia with sufficient speed."

[The ACLU then goes on to describe how militias evolved into the National Guard. Total text is not reproduced here because, again, not a single document or quote from a founding era personage is offered to substantiate the claim of what the Founders intended when they adopted the Second Amendment.]

DC: M.T. Cicero had a pretty good answer for the ACLU's question in his September 8, 1788 article in the Charleston State Gazette of South Carolina, when he wrote, "Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen."

George Mason displayed the same understanding in the Virginia debates on the Adoption of the Federal Constitution, when he asked and then answered, "Who are the militia? They consist now of the whole people."

While this is not the proper forum to debate the ACLU's unsupported claim that the National Guard is the evolved militia (except to point out that this would be a direct violation of Article I, Section 10 of the Constitution's proscription against state's keeping troops without the consent of Congress), the origins of this argument can be traced to Federalist support for, and Anti-federalist opposition to, the establishment of a select militia. Alexander Hamilton, in Federalist No. 29, argued that, considering the time and resources required "to oblige the great body of the yeomanry...to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss." But doesn't this show intent to limit armaments to a sanctioned militia, rather than to the general citizenry? Not at all. Further down in the paragraph, Hamilton declares, "Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped..."

So accepted was the tenet of universal militia status, that many sought to incorporate proscriptions as had some state constitutions against compulsory militia service for those "religiously scrupulous of bearing arms." Why would this have even been a concern if the militia was other than what Tench Coxe described in "A Pennsylvanian III" as "...THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY..." (emphasis in original)?

ACLU: "Q- Does the Second Amendment in any way guarantee gun rights to individuals?

A- No. The weight of historical and legal scholarship clearly shows that the Second Amendment was intended to guarantee that states could maintain armed forces to resist the federal government.

Most scholars overwhelmingly concur that the Second Amendment was never intended to guarantee gun ownership rights for individual personal use. Small arms ownership was common when the Bill of Rights was adopted, with many people owning single-shot firearms for hunting in what was then an overwhelmingly rural nation."

DC: Once more we are confronted by an authoritative assertion with absolutely no corroborating evidence. Disregard that 40 of the 45 law review articles written since 1980 refute the ACLU's claim (and that the remaining five were written by "researchers paid by anti-gun groups, and...a politician." Disregard the digression into a description of 18th-century small arms (although, remember that the government was also limited to "single-shot" firearms, and that many colonists had used Kentucky rifles, "outgunning" the former British authorities and their standard-issue "Brown Bess" muskets). And disregard their calculated transition from describing a militia formed to check the power of the federal state into a recounting of rural hunting traditions, as if the right of farmers to kill and eat squirrels was the issue.

So what should we regard? We could begin with Patrick Henry's bold declaration, "The great object is that every man be armed...Every one who is able may have a gun."

Or we could quote his ideological opposite in many regards, Baron von Steuben, who, while an advocate of a standing army, "indicated that the 'best possible magazine for a Republic' was to have arms and accouterments 'put into the hands of every member of the community.'"

ACLU: "Q- Does the Second Amendment authorize Americans to possess and own any firearms they feel they may need?

A- Clearly, no. The original intent of the Second Amendment was to protect the right of states to maintain state militias. Private gun ownership that is not necessary to the maintenance of the militia is not protected by the Second Amendment."

DC: Yet again, the ACLU would instruct us on intent and offer us nothing in the way of evidence. Typical of a statist mindset, they presume that the Bill of Rights authorizes, or grants rights. This is not the case; these rights are inherent rather than bestowed, and as such are not dependent on state sanction. The Second Amendment does not authorize the right to keep and bear arms, it merely recognizes and articulates it.

What did the Founders intend? The Uniform Militia Act of 1792 give us a pretty good idea, with its requirements for "...a good musket or firelock [the same technology available to the government- DC], a sufficient bayonet [one of the characteristics used to ban guns as "assault weapons" in Clinton's "Crime Bill"-DC]...", etc.

In other words (based on their words), the Founders intended for the American citizenry to keep and bear personal weapons of war.

ACLU: "Q- Does the Second Amendment allow government to limit—even prohibit—ownership of guns by individuals?

A- Yes, Federal, state and local governments can all regulate guns without violating the Second Amendment.

State authorities have considerable powers to regulate guns. The federal government can also regulate firearm ownership, although some scholars believe that the federal power may not be as extensive as that of an individual state.

California, for example, has limited the ability of local governments to regulate firearms. While the state has kept its broad regulatory power, cities and counties can only prohibit guns from being carried in public places."

DC: Yet once again, the ACLU has missed (or could not find?) an opportunity to back their rhetoric up with documentation as to the intent of the Founders. Further, it is incredible that they seriously propose that the Bill of Rights, which had the sole purpose of defining those areas off-limits to government infringements, provides the legal basis for the government to limit or prohibit anything! Can even they believe this nonsense?

Any serious study of the debates preceding Constitutional ratification must disclose that a fundamental reason the Federalists were opposed to a Bill of Rights was they felt it totally unnecessary, and even dangerous. It was inconceivable that powers not enumerated in the Constitution could be assumed (i.e., usurped), and the thought was, that by not enumerating every possible contingency and permutation, a Bill of Rights might be construed to limit individual rights to only those listed.

This Republic was founded on the principle of individual sovereignty, with government, as the creation of man, subordinate in matters of rights. "Place the sovereignty in the PEOPLE, and all the mysteries of government which have arisen out of kingcraft and priestcraft tumble to the dust," states a passage from "One of the People," Philadelphia Federal Gazette, July 2, 1789. "What should we think of a gentleman, who, upon hiring a waiting-man, should say to him—'my friend, please to take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain, and of speaking and writing my sentiments upon all subjects.' A servant must be a fool, who would not suppose such a master to be a madman... Let these truths sink deep into our hearts: that the people are the masters of their rulers and that rulers are the servants of the people..."

The balance of the ACLU brochure does not deal with the issue of Founder's intentions, so it will not be addressed here. The Open Forum article essentially covers the same ground as the brochure, wherein attorney Chris Sprigman offers such unsubstantiated pontifications as, "What [the Founders] did not intend to enshrine is the right for any person to obtain any sort of firearm with little obstacle," or, "[the Founders made] clear that the second Amendment is not an absolute 'right to bear arms.'"

Sprigman does, however, offer up one quote from James Madison (Hooray, at last!):"Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people [emphasis added- DC] on their side, would be able to repel the danger."

Did I miss something here, or did Sprigman just run the ball into the wrong end zone? What he also doesn't tell us is that this quote was from Federalist No. 46, and later, in the same paragraph, Madison decried European governments "afraid to trust the people with arms," which I cited earlier. The only rejoinder I could possibly offer to Sprigman's flawed analysis, and to the ACLU's fabricated position regarding the intent of the Founders on the Second Amendment, again comes from Madison, yet later in the same paper: "Let us not insult the free and gallant citizens of America..."

CONCLUSION: The ACLU, claiming that the Framers of the Constitution never intended to acknowledge an individual Second Amendment right, has failed my challenge of providing even ONE DOCUMENT from the Founding Era to support their thesis. Supporters of the individual rights theory, on the other hand, have a wealth of documentation at their disposal to support their position, as evidenced herein. Based on results, the ACLU's position is totally without merit.

A copy of this article was sent to Ramona Ripston, with an open invitation to publish future evidence relevant to the challenge, if and when she can produce it.

SOURCES:

The unanimous Declaration of the thirteen united States of America (Declaration of Independence)

The Constitution of the United States

The Origin of the Second Amendment: A Documentary History of the Bill of Rights, by David E. Young

"A Critical Guide to the Second Amendment," by Glenn Harlan Reynolds, Tennessee Law Review, Vol. 62, No. 3, Spring 1995

The Federalist Papers, No. 29, by Alexander Hamilton

The Federalist Papers, No. 46, by James Madison

Stopping Power: Why 70 Million Americans Own Guns, by J. Neil Schulman

NRA Public Affairs News Release, Dec. 8, 1994

"May You Defend Yourself?," Critical Issue Analysis, The Lawyer's Second Amendment Society

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