On the 226th Anniversary of Ratification

Dave Hardy notes was done with the expectation there would be a Bill of Rights, which they hoped would contain:

XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.

XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.

Now the other side, particularly Professor Adam Winkler, would be fond of jumping on the last part as evidence that our founders supported gun control. I don’t think that has ever really been in question, but let’s not pretend that there was, in colonial times and in the Early Republic, anything resembling what modern gun control advocates propose.

The latest book out on this subject, which I mentioned here and am in the process of reading, relies upon the fact that in the debates, the founders were singularly unconcerned with arguing the self-defense angle to keeping and bearing arms. This is mostly true, but they did talk about it, and some states even have it enshrined in their RKBA provisions. You can certainly make a compelling narrative that the founders were only concerned with the distribution of military power, and not self-defense, but it requires overlooking some very glaring evidence that the right was indeed meant to protect private self-defense, as well as the militia as an institution.

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11 thoughts on “On the 226th Anniversary of Ratification”

  2. The problem is why do you need that 12th amendment if the 2nd was understood at the time to guarantee individual gun rights? Seems like a can of worms best left closed.

      2. He means this:

        “XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

        But this comes from New Hampshire’s proposed Bill of Rights and predates the actual Bill of Rights. There’s no redundancy with the 2A because it didn’t exist at the time.

  4. “XII. Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

    Anyone want to know why the Militia clause is in the 2nd Amendment. I wager that after looking at proposed XII. Many exclaimed, but we the colonies had been in active rebellion against Britain. And thus, by the wording of XII, could be disarmed.

    “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.”

    Notice now how the actual wording of the 2nd Amendment maintains the protection against disarming the people. But eliminates the “rebellion clause”, why? What it does is essentially state that in fact, it is essentially affirming the right of rebellion, in the context of the militia…

    I believe the militia clause, essentially is balancing out rebellion. Pretty much saying that a rebellion of one or two may be questionable, but a rebellion of the masses in the form of the militia…that is enshrined.

    Just some food for thought…as I often hear people question why the militia is even included in the 2nd Amendment if it is an individual right. And I believe the New Hampshire submission shows exactly why. It was how they addressed the concern of minor rebellion (I’m not going to pay my taxes – illegitimate) vs wholesale rebellion of the masses (legitimate)

    1. There is a strong legal argument that while the Right to Keep and Bear Arms is, indeed, an individual right, the “right of rebellion” is about the only place where you can be said to have a “collective” right — if the general population goes along with your rebellion, it’s legitimate (and if successful, the results are legitimate).

      One dude (or small, isolated groups), “rebelling” is just either a criminal or a traitor. rebellion must be part of a greater collective action to be “legitimate”. And to retain that legitimacy, it must ultimately succeed.

      This in fact was the argument behind the both the American Revolution and the port-Civil War SCOTUS opinion that said that the actions of the Confederate governments were not binding on the post-war governments — by losing the rebellion, they lost legitimacy.

      Had the South won (as the American colonies did), they would have been legitimate.

      It’s actually a long standing belief – behind the regicidal revolt of the Romans against Tarquin as well as the English Civil War against Charles.

      Treason doth never prosper: what’s the reason?
      Why, if it prosper, none dare call it treason.
      — Sir John Harington

      Treason is not own’d when ’tis descried;
      Successful crimes alone are justified.
      — John Dryden

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