Bradley Fletcher analyzes District of Columbia v. Heller

This is an excerpt from Chapter 12 of By Force Of Patriots.

Bradley Fletcher shook his head in disgust. He tried to remain calm—but couldn’t. Oddly, it was in these moments of intellectual anger that he did his best thinking and writing. His blood pressure shot through the roof every time he read Justice Stevens’s dissenting opinion in District of Columbia v. Heller. And now that bit of legal fraud was on its way to reversing Heller and, in the process, gutting the Second Amendment.

Justice Stevens had written, in dissent, that James Madison, principal draftsman of the Second Amendment, had been charged with the task of assembling the proposals for amendments sent by the ratifying States. “With all of these sources upon which to draw,” Stevens wrote:

[I]t is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft … read:

“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.

What a crock, Bradley thought. The guy is either totally dishonest or an idiot. He reached out to his keyboard and started to write. He hammered on the keys as fast as he could, skipping some citations that he would have to go back and insert:

In point of fact, after the amendment was introduced by Madison and approved by the House, as noted by Stanford Professor David Couples in his exhaustive and authoritative treatise, On The Second Amendment, the Senate, along with a couple other changes, specifically rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.”

In rejecting the words  “common defense,” Professor Couples has noted, “the drafters made it clear that the Second Amendment right to arms was not solely for militia service.” 1 Journal of the First Session of the Senate 71, 77 (1820), Couples, On The Second Amendment, at 1776.

That the right was not limited to militia service is also demonstrated by the writings of Tench Coxe, who was a close political ally of Madison and eventually served in Madison’s sub-cabinet. During the ratification period he wrote a comprehensive, section-by-section exposition on the Bill of Rights. Regarding Madison’s right to arms amendment, Coxe wrote: “As civil rulers … may attempt to tyrannize, and as the military forces … might pervert their power to the injury of their fellow-citizens, the people are confirmed … in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2. See Couples at 1776 (emphasis in original).

Moreover, as Justice Scalia amply demonstrated in the majority opinion, absolutely nothing in the history of the proposals for amendments indicated that the right to keep and bear arms was to be limited to a state militia.

So, concluding, as we must, that the proposal process showed only one thing—that formulations limiting the right to a militia were specifically rejected—we need to look outside that process to see if there is any significant support for the notion that the second amendment was thought to apply only to a militia.

The scholarly literature of the day reveals numerous examples of learned explanations of the Second Amendment. Overwhelmingly, they favor the individual rights view.

For example, one of the early Treatises on Constitutional Law was written by Thomas Cooley in 1868. Regarding the Second Amendment, Cooley wrote, “The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.”

Justice Stevens states that the preeminent Joseph Story issues “not so much as a whisper” that the Second Amendment redounds to individuals. Yet, in his famous 1833 Commentaries on the Constitution of the United States, Story states that the English Bill of Rights of 1688, though limited to protestants, which at the time comprised 95 percent of the population, is similar to the Second Amendment in that it gives individual citizens the right to “have arms for their defence suitable to their condition, and as allowed by law.”

Yet another commentator, William Rawle, a prominent lawyer and a member of the Pennsylvania Assembly that ratified the Bill of Rights, published in 1825 a highly influential treatise analyzing the Second Amendment. He wrote, “The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent… The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.”

Among several other similar examples is perhaps the most authoritative of all. The most widely used legal treatise of the early Republic is the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by St. George Tucker. In it, Tucker considered the “right of self defence” to be “the first law of nature,” and the Second Amendment the “true palladium of liberty…” See Couples at 911.

Bradley wanted to go on writing. The examples were so many that it was inconceivable that Justice Stevens or anyone else could come to a contrary conclusion. Nevertheless, Bradley rued, anti-gun commentators and liberal professors were clamoring for Heller to be reversed on  the absurd and manifestly incorrect conclusion that the Founding Fathers “considered and rejected formulations that would have unambiguously protected civilian uses of firearms.” And, once reversed, Wallmire could seek a virtual ban of all firearms or, more circuitously, adopt, via treaty, the proposal of the United Nations Department of Disarmament Affairs, that no gun would be lawful if it 1) holds in its magazine or cylinder more than four cartridges or 2) can fire a bullet farther than 75 yards.

Fact was, Bradley had no axe to grind one way or the other on the whole issue of guns. He didn’t really even like guns. The problem, however, was that Stevens had prostituted the United States Constitution and the Second Amendment. And that made Bradley mad as hell.

He gritted his teeth, pulled his laptop in close, and started again pounding the keyboard. The words flew from his mind onto the screen:

Moreover, the entire history of the Bill of Rights demonstrates that the Second Amendment’s right to keep and bear arms is a personal right and is not dependent on a person’s membership in a state-sanctioned militia.

To the point, every reference in the Bill of Rights to “the people” refers to individual citizens, to wit:

•    the First Amendment … right of the people to peaceably assemble …
•    the Second Amendment … right of the people to keep and bear Arms …
•    the Fourth Amendment … right of the people to be secure … against unreasonable searches and seizures …
•    the Ninth Amendment … enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people …
•    the Tenth Amendment … powers not delegated to the United States by the Constitution … are reserved to the States … or to the people.

In every instance the United States Supreme Court has held that the words “the people” refers, amazingly enough, to the people.

Simply put, “the right of the people to keep and bear arms,” tells us that the people have the right to keep and bear arms!

What’s so damn hard to understand?

Bradley slammed the return key just as the phone rang. Of course, he wouldn’t keep that last sentence in his article. But sometimes if just felt good to really let his hair out…

Leave a Reply