Patriots Day Assembly Speech - Idaho State Capitol

[Timber Butte Outdoors]

Here is a speech delivered last Friday at the Patriots Day Assembly in the Idaho State Capitol by Justice Eismann of the Idaho Supreme Court. It is the best and most concise history and explanation of the 2nd Amendment I have heard. Justice Eismann graciously sent me his original copy of the speech. There is one significant typo in that the date of the English Bill of rights should read 1689.

Greg Kershul

Patriots Day

Daniel T. Eismann

April 19, 2013

Welcome as we assemble to remember April 19, 1775, the beginning of the war for our freedom and the birth of our nation.

My great, great, great, great, great, grandfather, General John Glover, (7 generations back on my Mother’s side of the family) organized and trained 400 men, called the Marblehead Mariners, to fight in the Revolutionary War, and he provided the first ship to the colonial navy. His men, along with other mariners from Salem, ferried General Washington and the colonial army across the East River in New York to escape inhalation during the first month of the Revolutionary War, and his men also ferried General Washington and his men across the Delaware for the first colonial victory in that war.

I have been asked to discuss the Second Amendment to the Constitution of the United States, which guarantees our right to keep and bear arms. I will give the historical background of the amendment and explain what it means.

History had shown the framers of our Constitution the need to limit the powers of the federal government. One of their concerns was that the government would disarm the people and use the military to oppress them. The English Stuart Kings Charles II and James II had used militias loyal to them to suppress political dissidents, in part by disarming them, and James II had ordered the disarmament of regions in England that were home to his Protestant enemies.

These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their right to bear arms. In 1869, Parliament accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. By the time of the founding of our country, the right to have arms had become fundamental for English subjects.

However, the English Bill of Rights was merely a statute that could be changed by Parliament. At the time of our revolution, the English Parliament was the supreme law of the land, and there was no written constitution that limited Parliament’s power.

The patriots who fought and won our Revolutionary War, and those who supported them, were very leery of a strong national government when the delegates assembled years later to draft a national constitution. In the words of James Madison, who is regarded as the Father of our Constitution and who was the 4th president of the United States, “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” The framers of our Constitution understood that history repeats itself because human nature does not change.

After the delegates to the Constitutional Convention had completed their work, the proposed constitution was submitted to the states for ratification. One of the objections to the document was that it did not include a bill of rights to keep the federal government from abridging the rights of the people. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. Ultimately, it was agreed that a bill of rights would be proposed as amendments to the Constitution after it was ratified.

On September 25, 1789, the First Congress of the United States proposed to the state legislatures twelve separate amendments to the Constitution that met arguments most frequently advanced against it. Ten of those amendments were ratified by the states, and those first ten amendments are what we call the Bill of Rights.

The rights listed in the Bill of Rights were not rights granted by the federal government. The purpose of the Bill of Rights was to prevent that government from infringing upon rights that were inherent in the people, and that existed independent of the government.

The Second Amendment states:

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.

So, what does the Second Amendment mean?

It begins by referring to a “well-regulated Militia.” The militia was understood to mean all able-bodied men within a certain age range. The right to keep and bears arms was clearly not limited to those in the militia, because the Second Amendment protects “the right of the people” to keep and bear arms, not just the right of those who serve in a militia.

The reference to the well-regulated militia in the prefatory statement was merely one reason, but undoubtedly the most important reason, for protecting the right of the people to keep and bear arms. The amendment stated that a well-regulated militia was “necessary to the security of a free State,” which meant a free country.

The delegates to the Constitutional Convention debated whether or not to permit the federal government to maintain a standing army because of concern that it would be used to oppress the people and suppress political dissent. They agreed to permit the federal government to maintain a standing army, but they included a limitation that no appropriation of money for that purpose could be for longer than two years. No such limitation was placed upon appropriations for the navy.

The militia had been formed by the states, and the federal government was not given the power to create the militia, but merely to organize them. A “well-regulated” militia merely meant one with proper discipline and training.

There were three reasons why a militia was thought necessary to a free state: (1) repelling invasions and suppressing insurrections; (2) making unnecessary the need for a large standing army; an (3) resisting tyranny, with the latter reason probably being most important.

As James Madison wrote, if the federal government attempted to bring down state governments by using the standing army, which he estimated would consist of only 25,000 to 30,000 men, there would be opposed to the standing arm “a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

The meaning of the word arms then is no different from the meaning of that term today. It referred to weapons that could be used for offense or defense.

Some have made the argument that the arms in the Second Amendment should be limited to the type of arms (flintlock muskets, rifles, and pistols) in existence at the time the Constitution was adopted.

If that was how the Constitution is to be interpreted, then the freedom of the press protected in the First Amendment would not include radio, television, the internet, or other electronic media because that technology did not exist then, and people would have to use quill pens in order for their writings to be protected by the freedom of speech.

The fact is that the arms kept and used by the people were technologically identical to the arms used by armies.

The Second Amendment protects the right “to keep and bear arms.” To keep arms at the time the Constitution was drafted meant to own and retain them. To bear arms meant to “`wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another.” The right to keep and bear arms in no way connoted participation in a structured military organization. The right to keep and bear arms was clearly understood to be an individual right.

The framers of our Constitution fought for and cherished liberty. As James Madison wrote, “An elective despotism was not the government we fought for; but one which should . . . be founded on free principles . . . .”

To maintain freedom, the Constitution they drafted and the Constitution that the states ratified only delegated limited, defined powers to the federal government. They understood that the federal government they were forming would be the greatest threat to their liberty and that liberty could be preserved only if the federal government had limited power.