The American Militia
Is There A Second Amendment Problem That
Requires Fixing
By Adopting A 28th Amendment?
This question has been approached many times in the past. Today it is not getting very
much attention because of the recent US Supreme Court decisions in Heller and McDonald, and
the other lower court cases that are following. The basic question however tells us much about
the whole issue of the Second Amendment and The American Militia.
Nearly a decade ago, a Guns and Ammo article by Chuck Klein dove into this. It was read
by Bob Culver at MCSM and quickly answered at that time. Then it might have had a slight bit of
relevance to bolster the Second Amendment. Today, because of recent events, it does not.
However, because it is informative in today’s news, here is the parsed original article and the
MCSM reply, along with a few small edits and insertions. It will serve as a study in the meaning
of the Second Amendment, gun control, The American Militia and even human rights. The G&A
text is formatted with a larger medium blue font color with the MCSM discussion in a standard dark blue font.
FROM GUNS & AMMO
Time For A 28th Amendment, By Chuck Klein
Guns & Ammo, June 2002, page 20
Fight for your firearms freedom! – Time For A 28th Amendment
One man’s approach to clarifying the gun rights issue
The recent Emerson Decision from the 5th District Court of Appeals acknowledged what
we’ve known all along: That people have the individual right to keep and bear arms.
However, like so many other court decisions, it creates more problems than it solves. The
court confused the issue by reserving the government’s power to restrict certain aspects,
such as regulating the bearing of concealed arms and other possible infringements.
Therefore the model of bearing - as well as the type of arms that we can keep - is still
subject to subjective government control.
[Note; the Heller and McDonald decisions, involving very narrow points of law, also leave such
questions standing as of 2010, which ongoing litigation is slowly chipping away at.]
Gentlemen;
I have two observations regarding the June 2002, Guns & Ammo article, "Time for a 28th
Amendment" by Chuck Kline. First, it is a good thing you included the note at the end that you
dis-avowed any association with the article ("The opinions expressed here are not necessarily
those...). Second, you are right it has, and will, provoke much thought; and letters too no doubt.
First, let's look at the Emerson case. Like most legal cases it is a bit difficult to follow and to
properly interpret. On the broad view, the several opinions do support the individual right to keep
and bear arms, just like Mr. Kline says. But the ruling is a very narrow case, as all are, and we
must not read too much into it as affirming a law (or a civil right). Even though the opinions are a
good statement, they acknowledge and clearly state support for individual rights to keep and bear
arms, that is not what the case was about. It was about the legal issue of dis-arming Mr. Emerson
under very narrow and specific law. In that, despite the very strong language supporting the
Second Amendment enumeration of the individual right, it did allow for Mr. Emerson to be
disarmed during a legal process. This must be what Mr. Kline means by, "reserving the
government's power to restrict certain aspects...". Up to that point everything is fine.
However, the continued statement, "...such as regulating the bearing of concealed arms and other
possible infringements." is where the trouble starts. The case had nothing to do with CCW,
although the vague "other possible infringements" could include that. But it does not.
If any one word could emulate the controversy over the Second Amendment, it has to be
“semantics” - the meaning of the words. The words “arms” and “people” mean different
things to different persons. To some on the far left, the" only "people" who should be
allowed to "keep and bear arms" would be active-duty military personnel and police. On the
other hand, the extreme right has touted that "people" means any and all persons. Militia
extremists are convinced "arms" means anything in use by the military, including tanks,
bombs and rockets. The opposite camp firmly believes it only refers to weapons in use at
the time of the Constitutions ratification- c.1790.
The effect of personalities have been ascribed to some groups of individuals, such as, "some on
the far left" and "extreme right" and "Militia extremists". Personality must not be used to taint a
groups respective analysis of the topics, and the resulting opinions they might offer, if, and that's
a big if, an individual or group is to analyze the subject fairly. They should state their resulting
opinion, based on fact and proper logic, and support that analysis with reference to other
information and opinion. We should then focus on the results and we should ignore the
personalities of those presenting a VALID analysis. However, some individuals and groups will
sneak a fast one by you and fudge their analysis, but that is what we need to be watchful of.
This subject has been the topic of much thought for decades. The gun banners try to interpret the
Second Amendment in a way to erode the individual citizens right to arms. Their personalities
invade their argument. We have all heard the various arguments; it's a collective right, a flexible
"living" Constitution, reasonable restrictions, etc. Often we are tempted to speculate what might
be done to end that argument, what changes we might make. We, the patriotic gun owners want
to end the bickering in our favor, displaying our personalities too. The anti's wish us to be
dis-armed. Fortunately, I think that our side has a lot more of the facts and supportable cause-
effect logic on our side. We need do very little for the Second Amendment to stand as we see it.
However, by taking any steps to change the Constitution so as to end the argument, we may burry
ourselves under the Unintended Consequences of what was intended as a reasonable effort. Lets
look at a few of the proposals of Mr. Kline.
The word "People" certainly cannot refer, for pragmatic reasons, to everybody. If all
“people” could “keep and bear arms," “then we'd have to allow prison inmates to carry
concealed and permit grade schoolers to swagger across the playground packing a .25
Baby Browning. That's not realistic or practical-any more than restricting "arms" exclusively
to that class of "people" who have the power of arrest.
The argument over semantics leads to the more serious Second Amendment problems. Consider
that the Constitution and then the Amendments were written over 200 years ago, then you can
understand why the "semantics" poses a problem. Fortunately, there is a lot of written material
from that era which discloses what the writers were thinking and what they wanted to do, almost
all of it clearly supporting the individual interpretation and hence the basis of the pro-gun
arguments. That, coupled with the clear text of the Second Amendment, answers some of the
semantic issues and allows a determination of what it meant then, why the Second Amendment
said what it does and what that implies for today.
A few "what if" examples are offered by Mr. Kline. They attempt to equate past and present
actions, which we should study. First he says that some positions are, "arms means anything in
use by the military..." and then he says, "the opposite camp firmly believes it only refers to
weapons in use at the time of the Constitution's ratification - c. 1790". The error of analysis here
is the attempt to equate "things" which may change over time. There is another example
immediately following where he says, "people certainly can not refer, for pragmatic reasons, to
everyone...then we'd have to allow prison inmates to carry concealed and permit grade schoolers
to swagger across the playground packing a .25 baby Browning." Two effects are evident here.
One is the attempt to equate variable items and the second is to refute by drawing ridiculous (full
of ridicule) arguments.
In the first, the attempt to equate things while time passes and technology changes, fails. While
things may change over time, fundamental ideals (like a Bill of Rights) must not change. Equating
the concepts and their desired results, rather than the things, serves a more successful purpose,
it is immune to the passage of time and the mechanical evolution of things. Please consider what
the writers of the time were discussing and putting down as the law of the land. Their overriding
goal was to achieve, and to secure for the future, a great measure of individual liberty and
freedom. Those few words do not do justice to the idea, but I hope you understand the basic
concept. They wrote, that in order for the citizens to first secure freedom and then to ensure
freedom through the ages, they must possess the ability to achieve that end and then retain that
prize, by force of arms if necessary. They knew, and made clear, that the way to do this was to
guarantee that as individuals they must be able to resist tyranny, to resist any attempt to remove
freedom that would destroy liberty.
Champions of historical liberty even wrote in earlier historical documents, PRECISELY what was
expected of individuals so that they may stand ready to defend liberty. They wrote that individual
members of a settlement were required to provide their own arms, that they should go armed even
to church on Sundays because of a contemporary danger. They even accentuated the more
effective means of defense, specifying firearms and shot in preference over edged weapons and
spears. So, in analysis of the concept of the duty to resist tyranny, what arms might be the most
effective in securing liberty for the individuals today? You guessed it, the common military arms
of the current period, just as in the past it was the common military arms of that time. What ever
period you choose to study; past, present or FUTURE, individuals must be armed to provide a
defense against any force which may attempt to destroy liberty, for example to turn a standing
army against the citizens.
Now to the next arguments, exactly who are "the people"? “Schoolers” are mentioned as not being
those who should be armed. But they WERE armed in 1775. Inmates are mentioned as not being
those who should be armed. But some, except for being imprisoned, might be those who would
be fighting at your back if it comes to defending liberty. At some time in the future there may be
many who are imprisoned for fighting for liberty. As I recall, some in another country sought to
liberate the political prisoners in the Bastille. Was this to fight for Liberty, Equality and Fraternity?
In the final analysis, "the people" are those who are fit to defend the country and the Constitution.
Some, by their past actions are not fit, most are.
Finally, the statement about "schoolers (who) swagger across the playground packing a .25 baby
Browning", is a hyperbolic ridicule of those who support defining "the people" in wide terms. This
is an old trick, if you can't defeat the argument, attack the individuals holding the position. I dismiss
it.
Perhaps the time is right to enact a new constitutional amendment to clear up the confusion
and uncertainty created by the courts. So as not to fall into a trap of ambiguity again, the
wording to this new amendment, the 28th Amendment, must be sure, certain and
unequivocal.
Some might think it rather presumptuous that a mere "gunwriter" could draft something so
significant as a constitutional amendment. However, since the original Constitution was
written by amateurs, and since we, just regular law abiding laymen, are the ones most
affected by the new amendment, it stands to reason that one of us should be trusted with
its authorship.
Therefore I propose this 28th Amendment to the Constitution of the United States of
America...
Now to the meat of the article. No, it is not presumptuous for anyone to discuss a concept. Where
would we be without free discussion of ideas. After all, that is the basis for another one of those
pesky Amendments, part of the Bill of Rights which is protected by the Second Amendment. OK,
so that is hyperbole too. By the way, the Constitution and the Bill of Rights was not written by
“amateurs” but instead by the cream of the thinkers and doers in the late 16th century. If you want
to call them Amateurs because they had not done this thing before, so be it, but they knew what
they wanted to do, how to do it and had the personal initiative to step forward to do it.
But, back to the discussion. Lets look at the suggestions, Section-by-Section.
AMENDMENT TWENTY-EIGHT
SECTION 1: Any citizen of the United States over the age of 21, who is not under
indictment for or has not been convicted of a felony crime of violence or felony illegal
distribution or trafficking in any drug of abuse; or has not been adjudicated as a chronic
alcoholic, drug dependent or mental incompetent mental incompetent; or is not under the
influence of alcohol or any federally controlled substance, has the right to keep and bear
arms anywhere this instrument has jurisdiction.
Intention of the framer: Any person who is a citizen of the United States (an inducement for
those living here as foreign aliens) and does not fall under one or more of the disabilities,
has the right to own and carry guns. This section does not grant the right, it only recognizes
this inherent and intrinsic right to keep and bear arms. The right extends to any physical
location under the control of the United States Constitution.
Section 1; Here are presented about 50 words use to define "the people". What could be more
simple than "the people"? If you must, you could define it as those who, in a pinch, will be willing
and able to fight. "The people" are most of us. What of the restrictions Section 1 places on "the
people", defining those not allowed to keep and bear arms? They are defined as those who are;
over age 21, "not under indictment", or have been "convicted of a felony crime of violence" or are
users of "ANY drug of abuse", or have been "adjudicated as a chronic alcoholic" or "is not under
the influence of alcohol" or etc, etc, etc. You get the idea. ALL of these restrictions gradually and
incrementally restrict firearm rights. And they are ARBITRARY. That's right, they can be changed
at any time to encompass a new segment of the population, for example lowering the blood
alcohol legal limit from 0.10 to 0.08, and hence disable a larger and larger segment of "the
people". Just make a few more laws and you disable a few more citizens. At the opening of his
article, Mr. Klein complained that, because of confusing court decisions, the right to keep and bear
arms, "is still subject to subjective government control." What he has proposed in Section 1 is
subjective control at its worst.
However, there is one saving grace in Section 1. It says, "This section does not grant the right, it
only recognizes this inherent and intrinsic right to keep and bear arms." You will see more on this
point later, however I prefer the simple statement that the Second Amendment “enumerates” a
right. You can add a qualifier before right if you wish; perhaps "Inalienable right", or "God given
right" or "Human right" would fit nicely. The concept is that the right exists in man as a
consequence of his nature and the necessity for him to assure Life, Liberty and the Pursuit of
Happiness. Section 1 concludes by saying that, "The right extends to any physical location under
the control of the United States Constitution." That would be nice, but it is not correct, it extends
to every human. Think about it as a fundamental human right and that those in some places
outside of the United States are at times denied this right. We may also have another problem
with that statement. There is much discussion over things like incorporation under the
14thAmendment of the Constitution, and applying those protections to all the States.
[Note: That appears to have been largely settled by the McDonald decision]
SECTION 2: The bearing of arms is prohibited within an enclosure where notification is
made restricting the bearing of arms and safe provision is made to secure such arms.
Intention of the framer: Any public or private entity has the option of forbidding the carrying
of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a
notice and provides for the arms carrier to safely store his arms. This way, courthouses,
police stations and department stores, etc., not wishing persons to be armed within their
enclosures can establish a "coat check" for guns.
Section 2; Here the location of carry is restricted so as to acknowledge the ability to prohibit carry
in certain private individual and civic public spaces. Well, that rule just stated in Section 1, "any
physical location under the control of the United States Constitution" didn't last too long. What is
at issue is this concept; if what you might do, carry arms, is offensive to another, if it might infringe
the liberty of another, then you should be considerate of that and then possibly modify your
actions. We call that being civil. It is the golden rule, do for others as they would do for you. Of
course that all presupposes that the modification of your activity does NOT put you in heightened
danger or impede your ability to defend yourself and the community. Also, an individual or a
business or a public space that restricts your right to defend yourself, should not expect you to be
willing or able to defend them. Even more important, a person or place making the restriction that
you may not defend yourself, may then be expressing their freely taken liability of seeing to your
personal defense while in their presence or on their property. This is probably an Unintended
Consequence that is not anticipated and probably NOT something that needs being specified in
the Constitution.
SECTION 3: "Arms" means any breech loading device weighing less than fifteen pounds,
unloaded, and capable of discharging by the action of an explosive or combustible
propellant, a non-exploding projectile or projectiles of which the projectile [s] is [are] not
greater than .505 inches in diameter; "bearing"of arms means to carry, either openly or
concealed; "keeping" arms means possessing, collecting or having control of arms.
Intention of the framer: Most non-gun owners and many gun owners would feel
uncomfortable with their neighbor hauling around a bazooka or other mega-destructive
device. Barrel and stock lengths, calibers (up to .50) and fully automatic arms are not
restricted as long as such arms do not weigh more than 15 pounds unloaded. This section
does not preclude local governments from enacting and enforcing "activity laws" such as
pointing firearms (assault) or including (sic) panic by openly carrying arms into crowded
public arenas.
Section 3; What are arms? Now we are beginning to count grains of sand in the desert. First, the
section is devoted to firearms, but "arms" does not mean just "firearms". It includes any of the
items in the category of devices used for defensive or offensive combat and other uses. Look in
the dictionary for a starting point on this definition, it says "arm- 1: WEAPON". The end.
The attempt to define arms in any way creates lots of Unintended Consequences. Look at the
Section 3 definition based on "projectile(s)...not greater than .505 inches in diameter". That
excludes; a whole lot of muzzle loaders, most shotguns, a bunch of very valuable and collectable
specialty rifles and double rifles, and my favorite gun, the .50BMG rifle which has a projectile of
0.510 inches nominal diameter (the bore between lands is 0.500 inches, the grove diameter is
.510). These definitions also exclude other items like; Knives, spears, swords, bolas, pepper
spray, nun-chuck, arrows, garrote, fists, feet, ball point pens, etc.
Just to make sure the definitions of the permitted arms is complete, Section 3 adds a weight
restriction of 15 pounds. Another strike against the .50BMG and a few specialty and collectable
firearms. I notice that this section is silent on the type of action used by those firearms, such as
full auto. The 15 pound weight limit however rules out all belt fed full size machine guns, including
the M2HB .50BMG, at over 100 pounds, and on down. Furthermore, have you ever tried to fire
a shoulder fired arm of large caliber that weighs less than 15 pounds? What makes you so sure
my neighbors might feel uncomfortable with me hauling around a Bazooka? At least the recoil is
low. Why restrict ammo choices to “non-exploding”? We are not talking about “duck hunting” here
so there may eventually be a “need” to which you “want” to be prepared with just such ammo. See
previous American Militia essays for a discussion of these aspects. I sure would feel more
comfortable knowing that I and some neighbors had the ability to field such items in time of any
need to which they were applicable.
SECTION 4: Each Territory or State of the United States may license/test persons who
wish to bear arms in public; fees and complexity of testing for such licensing shall not
exceed that which the licensing State or Territory establishes for a motor vehicle operators
license.
Intention of the framer: By allowing licensing and carrying of arms either openly or
concealed, we greatly enhance our chances of ratification while at the same time
establishing just who is and who is not a citizen. States might be more inclined to ratify
Amendment Twenty-Eight if they believed income could be generated from fees (or not lose
the fees they now receive for CCW permits or hunting licenses). Since Section 1
guarantees the right to keep and bear arms, all permits must be on a "shall issue" basis.
The tests and the procedure for securing the license cannot be any more complex than
what a State requires for its motor vehicle operators' license study a pamphlet, take a
written test and demonstrate proficiency. This section only applies to bearing arms in
public-it has no control on those who collect or bear arms on private property.
Section 4; Licensing. As described here, the fees and prescribed tests, and meeting a mandated
"ability", applies a prior restraint on keeping and bearing arms. Again, an arbitrary “fee” is applied.
Poll taxes have long been an illegal remnant of earlier civil rights restraints. It costs you nothing
to register and exercise your right to vote. There should be no fees or prior restraint on such
rights. The fees and tests and various requirements for firearm ownership can become arbitrary
and excessive if the related fee they are tied to, such as the motor vehicle process, is enlarged
to accommodate other needs and costs, none of which may relate to keeping and bearing arms.
This requirement will actually INFRINGE some current rights, for example it may ban open carry
in public which is allowed in many areas, and it would ban concealed carry without restriction in
areas where this is presently allowed.
The stated purpose to allow such restrictions is to improve the chances of ratification of the
proposed amendment. Such compromise lose some freedom each time they are tried, one little
cut at a time, freedom which will never be regained. Giving the states income from fees in
exchange for freedom is not acceptable. How about something along these lines. "Any person
may carry any arm for his personal or communal defense so long as that act does not show the
intent to perpetrate any deliberate infringement of freedom on any other individual." Sounds like
Vermont as I understand the laws up there.
SECTION 5: This 28th Amendment voids all previous federal, state and local statutes, laws,
court decrees, executive orders and legislative acts that pertain to the keeping and bearing
of arms.
Intention of the framer: this section is to make it clear that this new amendment has
superseded all other laws, statutes and executive orders and court rulings-federal, state
or local.
Section 5; A good try at selling this proposal is made here. It is proposed that the 28th Amendment
will superceded and render null and void all previous laws that pertain to keeping and bearing
arms. NOW your talking! But wait a minute, what about future laws? Don't we need something
like "shall not be infringed" to protect the future? What is to keep the process from starting all
over, new law heaped upon useless law. You have just bargained the present and future to gain
the appearance of some added freedom.
I've not included prohibitions against registration as I have problems with that - if some dirt
bag kills me, I want the cops to know where he got the gun. Maybe we could establish a
joint NRA/SAF/BATF agency to monitor/control registrations. What do you think?
There is a poison pill hidden in the last paragraph. Mr. Klein says, "I've not included prohibitions
against registration as I have problems with that - if some dirt bag kills me, I want the cops to know
where he got the gun." Let's be clear here, the "that" which Mr. Kline has a problem with is
"prohibitions against registration", or conversely, he has no problem with registration. OK. I know
this is a difficult subject, but please, try again, go back and start at the beginning. You want to
keep and bear arms so you may defend yourself (and others). If you can defend yourself you may
not have to worry about having the "cops" chalk out your body outline, then ask questions, collect
evidence and maybe find out who did it. What difference does it make where or how the dirt bag
got the gun. I would much rather have a lot of non-dirt bags able to defend themselves and
thereby repel the dirt bag factor, reduce their effectiveness and deter future attacks. To be blunt,
to remove them from the gene pool. While we are at the wish list, I'd like the courts to do a little
better job too. I'll let the dirt bags seek out Mr. Kline, who has now made himself a soft target,
knowing that some day his registration list may have caused him to be disarmed if he drinks three
Margaritas instead of two some night and gets himself prohibited from keeping and bearing arms.
GUNS & AMMO EDITOR'S NOTE: The opinions expressed here are not necessarily those
of the editorial staff of Guns & Ammo. However we felt that author Chuck Klein has offered
some very thought-provoking material-which we pay him to do-…
In closing, don't try to fix what is not broken. The Constitution and the Bill or Rights express the
rights of individual freedom, they are not lists of permitted or prohibited individual activities. They
ARE permissions and prohibitions on government. Just because some folks don't like the
Constitution, we do not need to change it. We should instead try to live by it, not in the way some
may think it should be interpreted, but how it was intended, to assure freedom.
-------------
Thus ends the give and take with Mr. Klein as he stated in Guns and Ammo in June of
2002. The closing comment above is the most important point of this long debated subject. You
have read about it here before and you may read about it again in the future if the current trend
of Second Amendment freedom advances stalls or takes a down turn. That is; The Second
Amendment neither grants nor restricts any individual or societal right to defense of self, family,
community or nation, it only ENUMERATES an existing human right. That right exists despite the
existence, modification or repeal of the Second Amendment. Any attempt to codify or restrict the
right, by restricting the tools of that right, will fall to the logical and moral fallacy of attempting to
restrict self defense.
Some people may agree within some small or large groups that it is permissible to impose
some restrictions on those tools, but the basic Right of self defense will always argue against
those restrictions. We pledged our fortunes our lives and our sacred honor to ensure Life and
Liberty as inalienable rights. An inalienable right is one that can not be surrendered, transferred
or given up, we can never escape it.
The American Militia knows this and holds it as a shield of freedom.
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