The Constitutional Question: Does the rights protected by the Second Amendment include Citizens owning Fully Automatic Firearms?
By Earl Lofland
April 13, 2011
On April 12, at 4:30 AM the South Carolina Militia mustered Cadets from the Citadel also known as South Carolina Military Academy, who launched an attack upon Ft Sumter with cannon fire lasting for 32 hours, until the commander; US Army Maj. Robert Anderson surrendered the fort to South Carolina, marking the beginning of the “War Between the States”. Many school books teach the War was about freeing Slaves. Yet there are many more issues that were involved besides just the topic of slavery among the several States in the Union, dating as far back as 1798.
If you ask people today where the first shots were fired that started the War, and who fired the first shots, an alarming amount of people answer with the Federal government fired the first shots on April 12. And some believe the first battle was the Battle of Gettysburg. Disturbingly because many people were uninterested in American history in school, almost two centuries have passed, where States have had to endure a standing army, that has lead up to people today growing so accustomed to a standing federal military force. They rally around at celebrations waving flags; shouting slogans, and wearing logos saying: “Support the Troops”. However, when you look at the reason the Second Amendment was created the threat of a standing army was one of the most dangerous concerns the people of the States seen as threat to either diluting or ultimately eliminating their individual liberty. In 1798 Congress and the President, John Adams first began to take these dangerous steps - an encroachment of the rights of the people of each State, when the Union Congress passed, and President Adams signed into law; the Alien Seditions Act, leading to Vice President Thomas Jefferson and James Madison retaliating with the Kentucky Virginia Resolutions, later to be known as the ‘Principles of 98’ or the “Nullification Crisis”.
The Citadel Bulldogs as they are known today. From the city of what used to be known as Charles Town South Carolina, (today known as Charleston, SC) were among the members of that States militia. After Major Anderson surrendered the fort to the Citadel and State of South Carolina's militia on April 13, 1861, the Union Army was then permitted to leave the fort without the threat of being harmed or captured. Outraged by South Carolina's arrogance and the embarrassment of the Union Army being physically removed from the State, Republican President Mr. Lincoln ordered the Secretary of War, Mr. Simon Cameron to muster 3 regiments from each of the States in the Union of States in retaliation against the seven states who were now called seditionists, for deciding to separate themselves from an overpowering and unbalanced government, that since 1798 had continuously encroached upon the rights of the people of the States . Five days later; on April 17, 1861, Virginia also voted and seceded from the Union.
In a Letter to the Secretary of War the Governor of Virginia wrote:
Executive Department, Richmond, Va., April 15, 1861. Hon. Simon Cameron, Secretary of War: Sir: I have received your telegram of the 15th, the genuineness of which I doubted. Since that time I have received your communications mailed the same day, in which I am requested to detach from the militia of the State of Virginia "the quota assigned in a table," which you append, "to serve as infantry or rifleman for the period of three months, unless sooner discharged." In reply to this communication, I have only to say that the militia of Virginia will not be furnished to the powers at Washington for any such use or purpose as they have in view. Your object is to subjugate the Southern States, and a requisition made upon me for such an object - an object, in my judgment, not within the purview of the Constitution or the act of 1795 - will not be complied with. You have chosen to inaugurate civil war, and, having done so, we will meet it in a spirit as determined as the administration has exhibited toward the South.
– Respectfully, John Letcher
In the following weeks Maryland and 6 other states voted on secession where Just before April 29, The Secretary of War ordered the US Army to go into Maryland to detain each member of the Maryland General Assembly who would vote in favor of secession. This was an further encroachment on States rights. Which prevented the people of Maryland from leaving the Union as it was known would happen if all the member s of Maryland’s state Convention had been permitted to vote.
The principles of nullification was originally accepted in 1814 by the Hartford Convention of New Englanders as well as many in the south, who recognized the Kentucky Virginia Resolutions as a protection against federal encroachments on their rights, and remained a point of contention; eventually leading to the crisis that erupted in 1832 with the Unions passage of The Tariff of 1832. Despite pleas from Southern representatives, who failed to moderate the protective barriers erected in earlier legislation, South Carolina called a state convention that passed a decision to nullify both, the tariffs of 1828 and 1832 within their borders, and threatened to secede if the federal government attempted to collect those tariff duties. This struggle between the business owners and people of the several States which formed a Union in 1787 went back and forth until 1860 when the predominantly agricultural states finally were threatened by seeing their economy collapse under the unbalanced tariffs which were leveraged to appease the industrial northern states business owners from paying an equal share in the operations of the central government. Robert Hayne (of Webster-Hayne Debate fame) resigned from the Senate to run for governor of South Carolina, and John C. Calhoun resigned as vice president, to take Mr. Hayne’s seat in the Senate. Both men spearheaded the nullification drive. Making the issue a real possibility of secession and the very threat of war was now seen.
President Jackson immediately offered his thought on this matter, that nullification was tantamount to treason, following the same path that occurred in 1798 with the passage of the Alien Seditions Act, ordering the dispatch of naval ships to the Charleston harbor and began deploying US military to Fort Sumter and other federal fortifications. This outraged the people of many States, reminding them of a similar action which occurred not but 70 years prior- leading up to the States forming a union and ultimately Declaring war against Great Britain and the English Army. The Unions Congress supported President Jackson however and passed a Force Bill in early 1833 authorizing Jackson to use a standing army to enforce the tariff measures. A standing army continued to occupy the States up until the outbreak of the War in 1861. US Forces were continuously marching against the will of the people of the States just as what occurred during the 1700's with the King of England and the British Army.
Meanwhile Henry Clay again took up his role as the Great Compromiser. On the same day the Force Bill passed, he secured passage of the Tariff of 1833. This latter measure provided for the gradual reduction of the tariff over 10 years down to the level which had existed in 1816. This compromise was acceptable to Calhoun who was not yet successful finding other states to support nullification. President Jackson signed both measures. South Carolina repealed its nullification measure, but then nullified the Force Bill and Mr. Jackson ignored this action. Though the issue died down, the outrage of a standing army and the other problems related to tariffs did not entirely go away, where they gradually morphed into the principles of States Decisions of nullification eventually leading to the secession of seven Southern states and the formation of the Confederacy.
In 1861, just one month before Mr. Lincoln took over the WH the SenatePassed the Morrill Tariff only possible because many low-tariff Southerners had left Congress after their states declared their secession. Historian Reinhard H. Luthin documented the importance of the Morrill Tariff to the Republicans in the 1860 presidential election where Abraham Lincoln's was recognized as a protectionist and supporting the Morrill Tariff bill. Reinhard noted, this bill helped Lincoln to secure support in the important electoral college states; Pennsylvania and New Jersey. Lincoln carried Pennsylvania handily in November, as part of his sweep of the North.
Still as all these issues were occurring in Congress the people continued to find disinterest in what President Jackson had created in 1832 and Congress nor any president after Jackson had yet decided to repeal a standing army in the several states.
The Second Amendment, like other provisions within the Constitution, was born of a combination of compromise and necessity, where the people of the founders generation had become acutely aware of the shortcomings of the Articles of Confederation, particularly those which established a tragic deficiency in the system of national defense which the States were the primary source in providing this role. The Constitutional Convention was called to seek redress in the potential risks of an encroachment on the Rights of the People outlined within the spectrum of the Articles of Confederation. The Framers experience with Great Britain made them all to aware of the dangers a large standing army posed to encroach individual liberty, while there was a broad agreement that a stronger federal military was needed, there was insight that a large and permanent National Armed Force would be met by the people with strong resistance. In accordance to the Emerson Case; “The primary shortcomings of the Articles of Confederation was that the central government it provided for was too weak” “ US v. Emerson 270 F 3D 203, 236 (5th Cir. 2001)
In an Americus Curiae filed by Several Retired Officers of the US Military in the case District of Columbia et. Al vs. Heller 554 US 570 (2008) counsel wrote:
“The Second Amendment, which enshrines the preexisting right to personal firearm ownership in the Constitution, offered a solution agreeable to all concerned. For those (Primarily Anti-Federalists) Concerned with the threat posed by a large national army to domestic tranquility, guaranteeing the right to “keep and bear arms” in the Constitution ensured that the People could act as a direct check against any tyrannical impulses this national army might harbor. As both James Madison and Alexander Hamilton explained in the Federalist Papers, the national army, no matter how fierce, could never overtake a body politic armed and trained to defend its liberty.”
The Framers ensured that the people could act as a direct check on any threat to domestic tranquility that a standing army might present a federal army would be powerless against citizens trained to carry arms. The size of any standing army would not “exceed one hundredth Part of the whole number of souls; or “twenty-fifth part of the number able to bear arms or approximately twenty-five or thirty thousand men” (Federalist No. 46 James Madison).
The framers also understood the what threats a large standing army imposed upon the people whereupon they articulated this in the Militia Clause of ART. I, § 8 CL. 15 allowing the federal government to call upon the people to defend the nation in times of need, thus reducing the demand for a massive federal army.
US v. Emerson 270 F 3D 203, 236 (5th Cir. 2001)
(“[F]ederal militia powers obviated the need for, or (at least) minimized the likelihood of, a large standing army being kept in existence”)
Citizens role in each State, in defense of liberty, whether threatened domestically or from an enemy abroad, thus is necessary and depends on citizens having ready access to arms and those arms being equal to any arms a federal Standing Army would be issued. These citizens were recognized as fully voluntary not enlisted or hired by any State or federal militia. These citizens arms also are to be considered adequate to arms which any standing army would be issued.
(See The Federalist No. 29 (Alexander Hamilton) ). “To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary 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. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
Should The Government impose Any Limits To What Arms Citizens Should Be Entitled To Own?
A Publication: A Democratic Federalist, Pennsylvania Herald Oct. 17, 1787 asked: “What then will there be to oppose to their encroachments? Should they ever pretend to Tyrannize over the people, their standing army will silence every popular effort….” The founders recognized and ensured through the Second Amendment the citizens could act as a direct check on any threat to domestic tranquility that a standing national army my represent; an army created by the central government would be powerless against the people of the States who were trained to arms.
In US v. Miller the “Sentiments of the time strongly disfavored standing armies” and the court ruled that the weapons that a person owned, in order to be constitutionally protected under the Second Amendment; the arms had to be used by and distributed to the US military. In the case of Miller, the question involved the possession a sawed off shot gun. Though the lower court ruled against Miller it was later reversed in Prinz v US. The question arose if a Sawed off shot gun was a government issued weapon prior to Miller; the answer is yes.
In American Munitions 1917-1919 Benedict Crowell, Assistant Secretary of War (1919) Government Printing Office, Washington D.C.. pp. 185–186. It states:
"When American troops were in the heat of the fighting in the summer of 1918, the German government sent a protest through a neutral agency to our Government asserting that our men were using shotguns against German troops in the trenches. The allegation was true; but our State Department replied that the use of such weapons was not forbidden by the Geneva Convention as the Germans had asserted. Manufactured primarily for the purpose of arming guards placed over German prisoners, these shotguns were undoubtedly in some instances carried into the actual fighting. The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers. The shell provided for these guns each contained a charge of nine heavy buckshot, a combination likely to have murderous effect in close fighting. "
The story in the Miller case began with the National Firearms Act of 1934, the first federal law regulating firearms. Prior to the NFA, it was believed the Constitution did not grant the federal government this power.
The new law levied a prohibitive $200 dollar tax on machine guns and sawed off shotguns. Government officials passed this law under the argument they were the weapons of choice for the criminal gangs during prohibition. This law was enacted during a period when the central government was in a determined effort to expand federal police powers at the expense of the States. (See The strange case of United States v. Miller Dr. Michael S. Brown (2001) Enter Stage Right - A Journal of Modern Conservatism.)
United States v. Miller, 307 U.S. 174 (1939), was reversed in Prinz v US, where the court determined the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, they determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. Though the Court did not attempt to define, or otherwise construe, the substantive right protected by the Second Amendment. It is clear the right of a person to own firearms that equate to those used as “Ordinary military equipment” or contribute to the common defense” today would be inclusive of the right for the people to own a wide variety of arms, used by the military today.
The militia consisted of the people bearing “Their own arms when called to active service” by the central government, “Arms which they kept and hence knew how to use” (See US v. Emerson 270 F 3D 203 at 235 (5th Cir. Ct. 2001). And by guaranteeing this right, citizens would have the skill needed to usefully bear them in defense of the nation, should the need arise. (US v Miller 307 US 174, 178-79)
Several Presidents also have recognized the need for the people to own military equipment grade arms, One during the time he commanded the Allied Forces, during WWII. General Dwight D Eisenhower observed “Any young man that has ahead of him prospective Service in the armed forces will do well to learn all he can about the military rifle… expertness in its use cannot be over emphasized” Letter from Gen. Dwight D. Eisenhower Commander in Chief Allied Force Headquarters To Dr. M.J. Damlos Clevland Civilian Marksman Ass’n Aug 16,1943 (5A)
Individual gun ownership has a direct national security benefit; deterring foreign aggressors of attacking the United States. Those inclined to attack this country realize that for such an invasion to succeed, they would not only be forced to defeat a first rate military, They would also be required to defeat a people equally armed, trained, and prepared to defend its sovereignty . This principle has been passed down from the founders generation involving the Revolutionary War, the War of 1812, the Mexican War, The Spanish American War WWI and the Hawaiian Islands December 7, 1941. Each time the people of the States have proven that contributing to the defense of this nations defense depends upon owning and knowledge of how to use arms. Without the command or blessing from the Several States.
Another World War II veteran and president also attested civilian marksmanship was important “through competitive matches and sports in coordination with the (NBPRP), The National Rifle Association fills an important role in our national defense effort, and fosters in an active and meaningful fashion the spirit of the Minuteman. Letter from: John F. Kennedy, President of the United States. To: Franklin L. Orth Executive Office Presidnet, national Rifle Assoc. (March 20, 1961 (11A)
Are there any studies which show proof Citizens should be entitled to own the same arms as the Military?
In a recent Rand Corp. report they discovered that training periods i.e Basic Training, are not as effective at elevating performance quality as much as lifelong training . “Many studies suggest that it is the accumulation of training over a lifetime that has the largest effect on individual performance, rather than simply training in the previous six months” It was also reported those with previous experience or training in a variety of military-oriented tasks would have a better performance than the novice.
Jennifer Kavanagh, Rand National Defense Research Institute, Determinants of productivity for Military personnel; A Review of findings on the Contribution of Experience, Training, and Aptitude to Military Performance (2005)
In an earlier report published by Rand Corporation they noted that even the trainees with no previous experience assigned to units with a high number of experienced shooters showed a higher numbers of qualified marksman in their scores . This report explained that this was most likely due to Marksmanship instructors not needing to spend as much time with the experienced shooters, and or those with prior experience shared their knowledge and were providing additional coaching to the inexperienced shooters.
(See Restructuring Military Education and Training: Lessons from Rand Research 1 (1997) by John D Finkler And Paul S. Steinberg. The court also ruled that; “An effective Militia requires not only that people have guns, but that they be able to shoot them with more danger to their adversaries than themselves Silveira v Lockyer 328 F3D 567 (9th Cir 2003)
CONCLUSION: Evidence proves through Court decisions; Research reports; letters from Presidents and military officers; and writings by those who birthed this country with having expressed the people should be capable to preserve their liberty- that the Second Amendment should not be interpreted in such a way that the government encroaches upon the right of the people to own firearms of their personal choice. As long as the arms are “ordinary military equipment” which is “used for the common defense”.