Why is the right to keep and bear arms the second amendment? Why was it not the tenth or final amendment in the Bill of Rights, as if to say "if all else fails, here's your last resort"? Is there a purpose to the way the Bill of Rights is ordered, like a shopping list where bread comes before light bulbs, or is it a random listing of items possessing equal importance? To understand this, we need to look at the basis of our constitution and the quality of the wisdom our founders are trying to impart.
The original constitution, known as the Articles of Confederation, was signed into law on March 1st, 1781. The Current constitution was adopted on September 17th, 1787 and later ratified over a three year period; the last state to ratify was Rhode Island on May 29th, 1790. The first ten amendments making up the Bill of Rights was added in 1791 to fulfill promises made to critics during the debates of 1778. Our constitution can be traced back to reflect the influence of Polybius' treatise on the checks and balances of the constitution of the Roman Republic, written in the 2nd century BC, through the guaranteed rights of the Magna Carta, the balanced forces advocated by Montisquieu and the natural law works of John Locke. Another influence was the British experiments with mixed government' in the 17th and 18th centuries. Taken literally, the United States Constitution is the culmination of about 2000 years of government trial and error'!The fact that the constitution incorporates amendments, or clarifications and specific limitations, speaks volumes about the suspicions the founders had towards any form of national government. Benjamin Franklin is said to have remarked after the convention of 1781, when asked what form of government he had given us: "A republic, ma'am, if you can keep it". Clearly the founders had reservations, and wanted to put teeth' into their intentions. Thus I believe that the Bill of Rights is in some loosely defined order'.
I would divide the Bill of Rights into four distinct sections, or pillars, each pillar of equal importance and supporting the others to provide a legal framework greater in strength than the sum of its parts. It would look like this:
First Pillar: Right to LibertyFirst Amendment: Freedom of speech
Second Amendment: Right to bear arms
Second Pillar: Right to private propertyThird Amendment: Billeting of soldiers
Fourth Amendment: Secure in person and possession
Third Pillar: Right to life, freedom and equal justiceFifth Amendment: Self-incrimination protection, et al.
Sixth amendment: Due process
Seventh Amendment: Trial by jury
Eighth Amendment: Cruel & unusual punishment
Fourth Pillar: Strict limitation of governmentNinth amendment: Enumeration of rights
Tenth Amendment: States' and individual rights
Each of these pillars can be said to support the 'roof' of the republican form of government. Taking the Bill of Rights in this manner, can we say that the founders anticipated the weaknesses in the union they had formed and made an attempt to pre-empt those who would try to undermine our constitutional form of government? Taking each pillar in reverse order, it may appear so:
In the Fourth Pillar (Strict limitation of government), we see that "[T]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" and "[T]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.". The founders, in their wisdom, spelled out in plain language that the government of the Union had certain rights and that those rights were limited to those enumerated in the constitution, and only those. All other rights remain in the realm of the States or the people in their respective capacities. Clearly the founders saw the possibility of the federal government attempting to usurp power from the States and thus become a more tyrannical form of national government.
In the Third Pillar (Right to life, freedom and equal justice), government is held to a set of standards that are meant to provide consistency in the rule of law for both civil and criminal justice. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The founders clearly meant to pre-empt the use of criminal courts as a means to impose tyranny on the people. The grand jury requirement imposes a burden of proof on prosecutors to show that proof exists that a specific crime was committed by a specific person. According to the Magna Carta, the jury in any case is not simply the judge of the evidence, but also the judge of the law. The double-jeopardy clause is clearly meant to curtail the possibility that a person could be accused of the same crime any number of times and thus be forced to defend himself in perpetuity, effectively hounding the accused person to bankruptcy and hence legal defenselessness. The right to silence removes the possibility that a person's own words may be used against them if unwillingly given, hence making the use of torture to extract confessions an invalid method of gathering evidence. The due process clause removes the possibility that the fourth amendment may be circumvented by the use of the legal system to confiscate private property and provides that any property taken for public use must be justly compensated. Clearly the founders had learned their lessons well under the rule of the British King George III and his colonial charter governments.
The Second Pillar (Right to private property) again prohibits the uncompensated public use of private property "[N]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" and "[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". Not only did the founders understand that confiscation was unfair taxation, they also saw to it that government had no right to survey the possessions of private citizens without a warrant supported by oath or affirmation and then only when there is evidence that a crime has been committed. Bluntly put, what government does not know about, it cannot take. British soldiers were regularly quartered in private homes both before and during the revolutionary war, much to the consternation of the homeowner, who was not only forced to house said enemy, but also to provide sustenance and tolerate this (generally) uninvited interloper.
In the First Pillar (Right to liberty), we are reminded of our god-given right to the freedom to speak our minds and the right to back that up with the threat of, or use of force, as necessary: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" and "[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 Puritans in the east, the Quakers in the (then) west, the Protestants in the south, all were free to believe in god as they wished Him to be, free of government interference. Freedom of the press and the right to assemble were concepts vigorously opposed by the appointed company and royal charter governors prior to the revolution. It was these tools that most enabled the founders to organize and rebel against the tyranny of the British king and the companies that owned his charters. The colonists sent many petitions and representatives to England only to be rebuffed and further tyrannized by even further restrictions and punitive trading laws. This pillar also serves to warn us that our republican form of government will only survive for as long as We the People are willing to act in its defense, intellectually by petition, or by force of arms if our words are not given the weight of our authority in government. It is interesting to note that even though the fourth amendment guarantees the right to private property, the founders felt it necessary to single out the right to keep and bear arms as a separate item to private property. Clearly they understood that those who turn their swords to plows would plow for those who did not.
Looking at it from this perspective, it is easy to see that not only is the Bill of rights ordered in a logical sequence, it is also intended to thwart many foreseeable attempts at tyranny on the national level. The second amendment is the second because it is the final straw. When all else fails, the second amendment is there to enforce the first amendment, and the first amendment is there to ensure the integrity of the other eight.
This is the first installment of a series I am writing about the background and philosophy of the US Constitution and its accompanying Bill of Rights.
The articles that follow will delve further into the origin of each pillar and provide further insight into the philosophy of freedom.
©2009 Larry Warrick, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Wednesday, May 6, 2009
Last modified: Wednesday, May 6, 2009
The views expressed in this article are those of Larry Warrick only and do not represent the views of Nolan Chart, LLC or its affiliates. Larry Warrick is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.
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Reader Comments:
Posted By: Randy
Date: 2009-05-07 08:43:20
"The founders, in their wisdom, spelled out in plain language that the government of the Union had certain rights and that those rights were limited to those enumerated in the constitution, and only those. All other rights remain in the realm of the States or the people in their respective capacities. Clearly the founders saw the possibility of the federal government attempting to usurp power from the States and thus become a more tyrannical form of national government."
They made a big mistake though, the Elastic Clause.Congress has the power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. ~ Art. I, Sec. 8, Par. 18.
This damaging clause was continually used by John Marshall to expand the roles of the court and the federal government because of the implied power it gave: "Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people"; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments." -Marshall.
A proposal to insert the word "expressly" in the Tenth Amendment was defeated by both houses of Congress in 1789.
As John Taylor put it after McCollock vs Maryland decision:
"Roads are necessary in war; therefore congress may legislate locally concerning roads. Victuals, manufactures, and a certain state of national manners, are more necessary in war; therefore congress may legislate locally, concerning agriculture, manufactures and manners. The favour of the Deity is more necessary than either; therefore congress may provide salaries for priests of all denominations, in order to obtain it, without infringing the constitutional prohibition against an establishment; or they may incorporate sects, and exempt them from taxation. Roads are more necessary for collecting taxes than even banks. Taverns are very necessary or convenient for the officers of the army, congress themselves, the conveyance of the mail, and the accommodation of judges. But horses are undoubtedly more necessary for the conveyance of the mail and for war, than roads, which may be as convenient to assailants as defenders; and therefore the principle of an implied power of legislation, will certainly invest congress with a legislative power over horses. In short, this mode of construction completely establishes the position, that congress may pass any internal law whatsoever in relation to things, because there is nothing with which, war, commerce and taxation may not be closely or remotely connected."
Unfortunately, the States and the People are at the mercy of the courts and how they interpret this clause that can seemingly nullify the 10th amendment altogether.