Spotlight 10/10/94 issue

  A California attorney will file suit against Bill Clintons new "anti-
crime" law on Constitutional grounds, contending the legislation is 
really an attack on the Second Amendment. Following is his 
explanation of what the Second Amendment means and why the 
Clinton administration must be challenged on this issue.

    EXCLUSIVE TO THE SPOTLIGIT
     BY PETER LEPISCOPO
The time has arrived for us to stop hedging around the issue and 
discuss the dirty little secret no one is willing to discuss: that the 
one and only purpose of the Second Amendment is to protect us 
from government--not each other.

Is the purpose of the Second Amendment for hunting? Is it for 
collecting? For sport or for self-defense against criminals? No, 
although these have been offered as justifications for its existence. 
Its sole purpose is to secure an individual's right for self-defense 
against government.

In order to understand the Second Amendment's Constitutional 
purpose, one must first recognize the distinction between the 
Constitution and the Bill of Rights. The Constitution establishes a 
government of limited powers; thus it deals exclusively with power. 
Conversely, the Bill of Rights (Amendments 1 through 10) was 
adopted to secure individual rights against government's intrusion; 
thus it deals exclusively with individual rights.

The importance of this distinction is indispensable when one 
attempts to discern the meaning and purpose of the Second 
Amendment. For example, if the Second Amendment is designed to 
secure a right against government's intrusion, then the question is 
raised: How can one argue that the amendment's purpose is for 
self-defense against criminals?

The answer, of course, is that one cannot because the Bill of Rights 
does not secure an individual's rights against other individuals but 
against government. Accordingly, present day opponents and 
proponents of gun control are engaged in a debate that does not 
address the principle of government vs. individual but individual vs. 
individual. This misinformed and illogical debate would offend the 
Founding Fathers.

Another misconception about the Second Amendment is the 
unfounded assertion that the amendment's language is ambiguous. 
The Second Amendment provides: "A well regulated militia, being 
necessary to the security of a state, the right of the people to keep 
and bear arms shall not be infringed."

This language is not ambiguous but clear if one properly analyzes 
the amendment according to Thomas Jefferson's instructions: "On 
every question of construction of the Constitution, let us carry 
ourselves back to the time when the Constitution was adopted and 
recollect the spirit manifested in the debates.

In order to find the purpose behind the Second Amendment, one 
need only recall the founders' fear of government's abuse of power.
Specifically, the founders feared a standing army, which is defined 
in the Oxford English Dictionary as an army of professional soldiers 
kept permanently on foot. For example, it was Britain's standing 
army assembled in 1770 that caused the Boston Massacre (five 
Bostonians killed by the British standing army).

The universally understood view of the founders was articulated by 
James Madison during the Constitutional Convention: "The greatest 
danger to liberty is from standing armies." In this regard, after the 
signing of the Declaration of Independence and prior to the 
ratification of the Constitution, state constitutions secured the right 
to keep and bear arms. For example, Section 15 of the Declaration 
of Rights to Vermont's constitution (adopted 1777) provides that 
"The people have a right to keep and bear arms . . . as standing 
armies are dangerous to liberty."

More telling, South Carolina's constitution contains a provision that 
explains the necessity of an individual's right to keep and bear arms: 
"Hostilities have been commenced in Massachusetts Bay by 
[British] troops, whereby a number of peaceable, helpless and 
unarmed people were wantonly robbed and murdered . . . The 
colonists were therefore driven to the necessity of taking up arms to 
defend themselves . . . "

During the debates on ratification of the Constitution, both 
proponents and opponents raised the issue of the absence of a 
declaration of rights. Specifically, with reference to standing armies, 
review of several provisions of the Constitution demonstrates that 
the founders' fear was well founded.

Article I, Section 8 provides that "Congress shall have the power to 
. . . raise and support armies . . . " Thus Congress was delegated the 
power to create standing armies. In addition, Article I, Section 10 
prohibits states from having troops: "No state shall, without the 
consent of Congress, keep troops."

These two provisions clearly placed the power to establish a 
standing army within the exclusive power of the federal 
government, which had the effect of disarming the states and their 
inhabitants. This situation sounded the alarm that caused the 
founders to adopt the Second Amendment.

By the time the ratification debates reached Virginia, John 
Hancock's idea of attaching a bill of rights to ratification gained 
momentum. Consequently, on June 8, 1789, James Madison 
introduced a bill of rights in the first Congress, which contained the 
first rendition of what would eventually become the Second 
Amendment.

MILITIA VS. STANDING ARMIES
Present day opponents of the Second Amendment argue that the 
word "Militia" means an army designed to provide for the common 
defense of our nation. These opponents, therefore, argue that 
because we have the greatest military that ever existed, a militia is 
not necessary; and, therefore, there is no need for the right to keep 
and bear arms. This assertion is incorrect and contrary to history 
surrounding and debates concerning the Second Amendment.

The word "Militia" is not synonymous with the term "standing 
army." The word "Militia" is defined as a nonprofessional citizen 
army, which is not assembled on a permanent basis. Conversely, 
standing armies are permanently assembled and comprise 
professional soldiers.

The founders were not confusing the standing armies that could be 
established by Congress with those composed of common 
inhabitants of the states. The latter were not assembled by, or loyal 
to, the federal government but to their own local neighborhoods 
and state. Accordingly, present day opponents' argument that the 
right to keep and bear arms is not necessary because "Militia" is 
synonymous with "standing armies" is false.

SHALL NOT BE INFRINGED
The Second Amendment provides that the government shall not 
"Infringe" on the people's right to keep and bear arms. As 
understood by the founders, the term "Infringe" as it relates to 
rights means to encroach on or upon." This means to invade 
gradually. Thus, the Second Amendment prohibits the government 
from interfering with this right, no matter how minimal; no matter 
how subtle. This includes indirect interference, such as oppressive 
taxation or regulation.

Furthermore, the use of the command "Shall not" was used to 
eliminate any argument that the right was subject to the 
government's discretion.

The founders did not use the term "Shall not be infringed" by 
accident but by design. They intended to preclude the government 
from implementing sophisticated means by which to encroach upon 
this right. After all, the amendment was designed to be a check 
against government's abuse of power and it would be in the gov-
ernment's best interest to encroach upon or eliminate this right. 
Virginia delegate George Mason stated it most succinctly: "To 
disarm the people is the best and most effective way to enslave 
them."

Accordingly, the founders used specific language in order to obtain 
a specific result: to secure our right to keep and bear arms for our 
protection against government. Those who actually believe that the 
founders were not deliberate in their drafting of the Second 
Amendment are either naive or misinformed.

In the last several year there has been a torrent of gun control legis-
lation that calls for severe infringements or all-out repeal of the 
Second Amendment. The opponents and proponents of gun control 
focus their debate on the impact, or lack thereof, it would have on 
gun related deaths.

On the one hand, the proponents of gun control insist that removal 
of all guns from society will stem the rising tide of gun violence. On 
the other hand, opponents to gun control insist that the Second 
Amendment guarantees them a right to self-defense against crimi-
nals, to collect guns, to hunt and/or to use guns for sport. I believe 
both arguments are historically and Constitutionally incorrect.

It is quite clear from history and the debates surrounding the 
adoption of the Second Amendment that the present day debate 
does not focus on the proper principle underlying that amendment 
(i.e., protection against governmental tyranny). Accordingly the 
actual purpose of the Second Amendment will be betrayed 
regardless of who wins the debate.

To be sure, the argument can be made that we are entering the 21st 
century and the fears of men who existed in the late 18th century no 
longer exist. This argument quickly disappears, however, once one 
realizes that although time has passed, human nature remains 
unchanged: Unless restrained, all governments devolve to tyranny. 
Moreover, it can be presently observed that governments 
throughout the world are oppressive to their people. What do these 
governments have in common? They have the guns and their 
subjects do not.

More importantly, it can never be assured, nor should we ever 
believe, that government could never become oppressive and 
devolve into tyranny. Accordingly, there can never be any 
Constitutional justification for government infringing upon the 
people's right to keep and bear arms.

