"The evidence of the framers' original intent is mixed," said Michael C. Dorf, a vice dean at Columbia Law School and a supporter of gun control. "But courts very rarely base their decisions solely on what the framers meant to say in 1791." From "Gun law in focus as NRA gathers," Rick Montgomery, The Kansas City Star, Friday, May 18, 2001, Page A-7.[Jacq': in the jump from A1]

Rick

This longer-than-intended note is prompted by this morning's front page article headlined, "Gun law in focus as NRA gathers," from which the above quote was excerpted. I found your article this morning to be important and of great interest.

The debate over the meaning of the Second Amendment is only secondarily about firearms. The outcome will ultimately determine whether individual political liberty survives in the United States. Doctor Dorf is correct when he notes the inattention paid by courts to original intent but if "what the framers meant to say" is not controlling, what is? The good intentions of politicians? The whims of unelected justices?

A Welfare State establishment has arisen. It is internationalist, collectivist, and bi-partisan. It holds traditional American values in disdain and imagines there to be no constitutional constraints on its power worth respecting. Its members include professional politicians, jurists, bureaucrats, lawyers, consultants, members of the Fourth Estate and prominent leaders of banking and multinational business. This establishment is an incipient tyranny on an unimpeded trajectory toward despotism. It is rapidly developing the legal framework and the technology to exert absolute power over every day life.

If this sounds extreme, consider that the Welfare State has already taken unto itself the power to

1. Directly confiscate more than forty percent of the average citizen's earnings;

2. Require everyone to "contribute" to a social security program that is already bankrupt;

3. Require that all infants be issued a social security number at birth, without which it is impossible to open a bank account, start a business or obtain employment;

4. Confiscate and sell the homes, cash and other property of citizens without trial;

5. Track all financial transactions amounting to more than $5,000;

6. Require that an approved picture ID be presented before boarding an airplane;

7. Require that all telephones be designed and built to permit government interception of private conversations;

8. Conduct criminal trials, in secret courts, of citizens accused of associating with organizations that have been outlawed by presidential decree; and

9. Assign all citizens to work brigades, forcibly relocate populations, and seize all means of production, transportation and supplies of food in time of national emergency.

These are only a few examples of the vast and unconstitutional powers that the national government claims for itself in matters great and small. The framers of the Constitution would not recognize today's U.S. government as a creature of their handiwork for the very good reason that it has long since forfeited any claim to constitutional legitimacy.

"My own view is that you can go to the extreme in either direction. And when we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly.

"That is, when we set up this country, abuse of people by government was a big problem. So if you read the Constitution, it’s rooted in the desire to limit the ability of government’s ability to mess with you, because that was a huge problem. It still can be a huge problem. But it assumed that people would basically be raised in coherent families, in coherent communities, and they would work for the common good, as well as for the individual welfare.

"What’s happened in America today is, too many people live in areas where there’s no family structure, no community structure, and no work structure and so there’s a lot of irresponsibility. And so a lot of people say there’s too much personal freedom. When personal freedom’s being abused, you have to move to limit it. That’s what we did in the announcement I made last weekend on the public housing projects, about how we’re going to have weapons sweeps and more things like that to try to make people feel safer in their communities"

[emphasis added].

Lest one conclude that these words are simply the meaningless ramblings of a media-hypnotized politician, consider the ideas of George P. Fletcher writing in the June 23, 1997 issue of The New Republic. Fletcher is Cardozo Professor of Jurisprudence at the Columbia Law School, an associate of Professor Dorf's. This is a man who trains lawyers and, ultimately, judges, a certified member of the establishment. In "Unsound Constitution," Fletcher writes

"Of all the myths that support Timothy McVeigh's antigovernment reading of the Constitution, the greatest is the idea that the People are sovereign and superior to the Constitution [emphasis added]. In this argument, the People--represented if necessary by McVeigh and alleged accomplice Terry Nichols--are superior to constituted government authority. They are in a position to judge whether the government has exceeded its authority. Sitting as jurors, they can nullify laws democratically enacted and properly applied. As freeman they must be prepared, as Hamilton argued, ‘to rush tumultuously to arms’ as soon as ‘the persons intrusted with supreme power become usurpers...’

",,,Still, there's a more fundamental problem with the originalist line of reasoning. The "original republic"--the one for which our "forefathers" fought "face to face, hand to hand"--exists only in the minds of academics and fundamentalist patriots. The republic created in 1789 is long gone. It died with the 600,000 Americans killed in the Civil War. That conflict decided once and forever that the people and the States do not have the power to govern their local lives apart from the nation as a whole. The People have no power either to secede as states or to abolish the national government [emphasis added].

Fletcher's article is important but it has received distressingly little notice. "Unsound Constitution" is a shot across the bow. This article's publication marks the first time a prominent member of the establishment has gone public in such a bold and arrogant way, pronouncing the American

Republic dead and proclaiming that henceforth the State is sovereign and the people are its subjects, powerless to change their fate. Fletcher has boldly described, for all to see, the legal rationale for much of the national government's conduct. The United States government is operating under a "new constitution," a collection of principles and doctrines born at federal bayonet point in 1865 and "refined" by federal judges ever since. It is no longer possible to pretend that the national government's unconstitutional behavior is the result of simple ignorance. No, the national government and its establishment supporters no longer feel bound by the Constitution and have begun to say so. This chilling assertion of unfettered power issues the challenge that a free people must always answer whenever tyranny threatens. In the words of Czech university students, written on the wall in Prague in November, 1969 "If not us, who? If not now, when?"

Frank Brady

PS Nothing better displays the utter falseness of claims of ambiguity about the framers' original intent with respect to the Second Amendment than the framers' own words and those of their contemporaries. The framers absolutely believed that the individual right to keep and bear arms was essential as a defense against the development of tyranny. Consider these quotes (citations provided)

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." (Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322)

"The whole of the Bill (of Rights) is a declaration of the right of the people at large or considered as individuals.... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." (Albert Gallatin of the New York Historical Society, October 7, 1789)

"The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States....Such men form the best barrier to the liberties of America" - (Gazette of the United States, October 14, 1789.)

"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])

"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..." (James Madison, I Annals of Congress 434 [June 8, 1789])

"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." (Richard Henry Lee, Additional Letters from the Federal Farmer (1788) at 169)

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [ I Annals of Congress at 750 {August 17, 1789}])

"...to disarm the people - that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-244)

"the ultimate authority ... resides in the people alone," (James Madison, author of the Bill of Rights, in Federalist Paper #46.)

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of 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 bands of regular troops that can be, on any pretense, raised in the United States" (Noah Webster in `An Examination into the Leading Principles of the Federal Constitution', 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))

"...if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" (Delegate Sedgwick, during the Massachusetts Convention, rhetorically asking if an oppressive standing army could prevail, Jonathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol.2 at 97 (2d ed., 1888))

"...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 use of arms, who stand ready to defend their rights..." (Alexander Hamilton speaking of standing armies in Federalist 29.)

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in Federalist Paper No. 46.)

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people" (Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788)

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." [William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

"I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426)

"The Constitution shall never be construed....to prevent the people of the United States who are peaceable citizens from keeping their own arms" (Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)

"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." (Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights, Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)..)

"The great object is that every man be armed" and "everyone who is able may have a gun." (Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,...taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805. Also 3 Elliot, Debates at 386)

"The people are not to be disarmed of their weapons. They are left in full possession of them." (Zachariah Johnson, 3 Elliot, Debates at 646)

"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)

"The best we can hope for concerning the people at large is that they be properly armed." (Alexander Hamilton, The Federalist Papers at 184-8)

"And what country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms....The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants" (Thomas Jefferson in a letter to William S. Smith in 1787. Taken from Jefferson, On Democracy 20, S. Padover ed., 1939)

"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" (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)

"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence ... From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good" (George Washington)

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks. (Thomas Jefferson, Encyclopedia of T. Jefferson, 318 [Foley, Ed., reissued 1967])

"The supposed quietude of a good mans allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside...Horrid mischief would ensue were one half the world deprived of the use of them..." (Thomas Paine, I Writings of Thomas Paine at 56 [1894])

"...the people are confirmed by the next article in their right to keep and bear their private arms" (from article in the Philadelphia Federal Gazette June 18, 1789 at 2, col.2,)

"Those, who have the command of the arms in a country are masters of the state, and have it in their power to make what revolutions they please. [Thus,] there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people." (Aristotle, as quoted by John Trenchard and Water Moyle, An Argument Shewing, That a Standing Army Is Inconsistent with a Free Government, and Absolutely Destructive to the Constitution of the English Monarchy [London, 1697])

"No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion." (James Burgh, Political Disquisitions Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775])

"Men that are above all Fear, soon grow above all Shame." (John Trenchard and Thomas Gordon, Cato's Letters Or, Essays on Liberty, Civil and Religious, and Other Important Subjects [London, 1755])

"The difficulty here has been to persuade the citizens to keep arms, not to prevent them from being employed for violent purposes." (Dwight, Travels in New-England)

"What country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms." (Thomas Jefferson to James Madison, Dec. 20, 1787, in Papers of Jefferson, ed. Boyd et al.)

(The American Colonies were) "all democratic governments, where the power is in the hands of the people and where there is not the least difficulty or jealousy about putting arms into the hands of every man in the country. (European countries should not) be ignorant of the strength and the force of such a form of government and how strenuously and almost wonderfully people living under one have sometimes exerted themselves in defence of their rights and liberties and how fatally it has ended with many a man and many a state who have entered into quarrels, wars and contests with them." [George Mason, "Remarks on Annual Elections for the Fairfax Independent Company" in The Papers of George Mason, 1725-1792, ed Robert A. Rutland (Chapel Hill, 1970)]

"To trust arms in the hands of the people at large has, in Europe, been believed...to be an experiment fraught only with danger. Here by a long trial it has been proved to be perfectly harmless...If the government be equitable; if it be reasonable in its exactions; if proper attention be paid to the education of children in knowledge and religion, few men will be disposed to use arms, unless for their amusement, and for the defence of themselves and their country." (Timothy Dwight, Travels in New England and New York [London 1823]

"It is not certain that with this aid alone [possession of arms], they would not be able to shake off their yokes. But were the people to posses the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it." (James Madison, "Federalist No. 46")