Mr. Bundy and the Second Amendment

I was getting pretty concerned this weekend over the Bundy versus the Bureau of Land Management(BLM) fiasco this weekend. I saw a couple of scenes that looked they were one small step from re-enacting the Waco siege. The Waco siege or otherwise known as the Waco massacre is is not one of the bright spots in American history. It purportedly was about the sale of automatic weapons but it was so botched that the only thing most people remember is all of the people who died unnecessarily. It is a vivid reminder of the pitfalls when you to try to defend yourself against the government. In the case of the Mr. Bundy versus the BLM, wiser heads prevailed and the BLM backed down. What I found interesting is what Mr. Kornze said,

“Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public.”

This weekend I also caught up with Justice Steven’s opinion in the Washington Post on how to fix the Second Amendment. In that piece he argues everything would have been fine with the Second Amendment if the authors had said,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

Unfortunately he ignores the fact that our Bill of Rights was based on the English Bill of Rights and common law history. Here is what Wikipedia says.

The right to keep and bear arms (often referred to as the right to bear arms or to have arms) is the people’s right to have their own arms for their defense as described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.[1] In countries with an English common law tradition, a long standing common law right to keep and bear arms has long been recognized, as pre-existing in common law, prior even to the existence of written national constitutions.[2] In the United States, the right to keep and bear arms is also an enumerated right specifically protected by the U.S. Constitution and many state constitutions[3] such that people have a personal right to own arms for individual use, and a right to bear these same arms both for personal protection and for use in a militia.[4]

The concept of the “right of the people to keep and bear arms” is derived from the English Bill of Rights 1689 which states:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Now we get to the $64 questions. Were the authors of the second amendment deliberately vague in phrasing this right so as to allow citizens to act as the political counter-balance to thuggish political actions by the executive branch and to allow the judicial branch some discretion in how the law was enforced? I suspect that Justice Steven’s solution would only recognize a militia that was duly authorized by the legislature.  This would make a mockery of the people who felt the Bundy’s grazing rights had been trampled on solely to support a misguided environmental concern voiced by a major donor to Senator Harry Reid. The idea that people in the government would engage in thuggish political actions solely to benefit their friends existed long before the Bill of Rights and I suspect King George III would have agreed with Justice Stevens on the importance of restricting the right to bear arms. The right of the people to keep and bear arms appears to have been a veiled threat intended to convince our politicians whether they be Kings, Prime Ministers, or Presidents that they should fear the wrath of their citizens whenever they stop listening and respecting the grievances of the citizens.

The second of the $64 questions is why is Justice Stevens arguing this point at the same time the Administration has garnered their place in history as the best gun salesman ever. This bustling market for guns looks like a bigger problem than one that can be solved by adding five more words to Second Amendment. The more the Administration talks the worse the problem gets. When Vice President Joe Biden gave us his opinion on self defense, my wife went out and bought a shotgun. Now we own two guns and I sarcastically refer to the shotgun as Joe. If Justice Stevens and the Administration really wanted citizens to own less guns then they should seriously consider doing the opposite of what they are doing.

The third $64 question comes from The Second Amendment As Ordinary Constitutional Law piece by Glenn Reynolds of Instapundit fame. He asserts that the “individual right to arms, not just “state armies”””a right that was, in fact, not at all dependent on the individual’s membership in any organized body or militia” is ordinary constitutional law. If that statement is true then why is Justice Stevens trying to make the link of the right to bear arms to participation in the militia? Isn’t that already settled?