The Second Amendment and the American Gun: Evolution and Development of a Right Under Siege

Copyright © 2016 by Mid-Minnesota Self-Defense, Inc.

All rights reserved. This material may not be reproduced in any form or by any electronic or mechanical means including retrieval systems without the express prior written permission of the copyright holder. For permission, contact: Lynne Fleming, publisher and co-owner, Mid-Minnesota Self-Defense, Inc.

Published by Rivers Edge Productions, Inc.

P.O. Box 1075, Monticello, MN 55362

Phone: 763-295-8100 • Fax: 888-351-1653

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ISBN: 978-1-4835751-4-8

ABOUT THE COVER ART

On December 13, 1636, the Massachusetts Bay Colony General Court issued a declaration that all able-bodied men between the ages of 16 and 60 were required to join the militia to defend against enemy attack and protect the settlements.

Image: The First Muster in 1637 took place after the December 13, 1636 Massachusetts General Court declaration established three regiments of citizen soldiers within the colony to defend against enemy attack and preserve villages established in the colony per English militia tradition. Source: The First Muster painting by Don Troiani.

Now, over 380 years later, the National Guard still has the same mission and is an important part of the fabric that defends our country. The National Guard’s motto Always Ready, Always There is embodied in its founding when militias protected the colonies and today as the National Guard protects U.S. citizens at home and abroad.

First Muster is from a series of heritage paintings with the National Guard. It is used on the cover of this book by permission of the National Guard Bureau of Public Affairs.

ABOUT THE AUTHOR – JIM FLEMING

Jim is an attorney at Fleming Law Offices, P.A. in Monticello, Minnesota with over 33 years of trial and appellate court practice experience. He is admitted to the Bar in Minnesota and previously to the State Bar in Nebraska. He has been accepted to the Bar of the 8th Circuit Court of Appeals. He has argued both civil and criminal appellate cases in the State appellate courts, as well as before the 8th Circuit Court of Appeals.

He is a network affiliate attorney and serves on the Advisory Board for the Armed Citizens Legal Defense Network (ACLDN), is on the Legal Panel for CCW Safe, an affiliate attorney for the Critical Response Team of the United States Concealed Carry Association (USCCA), and is an Advisor for the Minnesota Gun Owners Civil Rights Alliance Legal and Educational Action Fund (GOCRA-LEAF). He is also a former Nebraska certified law enforcement officer, and has served as an Investigator for the Nebraska State Crime Commission.

Jim is the author of AFTERMATH: Lessons In Self-Defense – What To Expect When the Shooting Stops. and has written several articles published in Concealed Carry magazine. He is a former college level instructor having taught Constitutional Law and Jurisprudence for the University of Nebraska, Nebraska Wesleyan University, and the College of St. Mary in Omaha, Nebraska. Jim has also provided continuing legal education seminars for attorneys and continues to lecture nationwide on self-defense and related legal topics.

In addition to his work as an attorney, he is an NRA certified firearms instructor in the disciplines of pistol, rifle and shotgun. Jim is also a certified firearms self-defense instructor for legal aftermath, permit to carry classes, and advanced shooting courses for the company, Mid-Minnesota Self-Defense, Inc. which he co-owns and operates with his wife, Lynne Fleming.

For additional information, visit these websites:

•FLEMING LAW OFFICES: www.JimFlemingLaw.com

•MID-MINNESOTA SELF-DEFENSE: www.MidMNSelfDefense.com

•AFTERMATH – Lessons In Self-Defense (the book): www.AftermathByJimFleming.com

•AUTHOR, JIM FLEMING: www.AuthorJimFleming.com

Contact the author, Jim Fleming:

Email Jim@JimFlemingLaw.com

Phone: 763-291-4011 – Fleming Law Offices

Mail: P.O. Box 1569, Monticello, MN 55362

ACKNOWLEDGEMENT

Although this book is intended for the non-lawyer, it necessarily focuses upon the Second Amendment to the United States Constitution. That is law, as are the many cases that have issued from the American courts, interpreting the language of the Amendment, and the intent of the historical figures who authored it, approved it and ratified it clear back in the late 1700's.

I would be horribly remiss if I did not thank them for their vision, and their wisdom. However, more modernly I want to thank the people who invested a great deal of time and effort in assisting me to produce the best work that I can do. This list includes my wife, Lynne Fleming, for her patience and working many long hours to get the book published. Her work in searching out images to enhance the written words, the computer skills required for layout and design of the pages, and the tremendous amount of detail work necessary to format the book for both digital and hardcopy presentation simply cannot be over emphasized.

I also wish to thank my good and long time friend, William J. (Bill) Morris, attorney from Lincoln, Nebraska. A former mentor when I first entered the practice of law and a gifted writer in his own right. For it was Bill who took my work, chapter by chapter, beating the flab out of the wording, tightening the prose, correcting verb tense and dangling participles, and anything else he could find. And, he found a lot. He also challenged my history, and my logic, caught occasional mis-attributed quotes and in general worked for hours, volunteering his time to help me get this book finished and published.

Likewise, Minneapolis, Minnesota attorney, Michael Dirksen, graciously volunteered his time to a painstaking line by line review as the book neared completion, catching several typographical, spelling and syntax errors that had been missed or possibly overlooked. A man with a fine legal mind and endless good humor, his contributions have been invaluable.

These people have made this book possible. I thank them for their efforts, which are surely appreciated. I thank you, the reader, for purchasing my book and I hope that you will find the work valuable by recommending it to a friend.

INTRODUCTION

Any individual, involved on one side or the other of the current debate over the extent of the individual American citizen’s right to own and possess firearms, undoubtedly knows the language of the Second Amendment to the United States Constitution, by heart:

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.

¹

Those are the words. However, the critical question at the center of the debate is, What do those words mean?, or perhaps more properly stated, the question should be, What did the drafters of the language intend them to mean. Today, over two hundred and twenty years after the Second Amendment was adopted on December 15, 1791, the language has been alternately described as inviolate, a fundamental aspect of our liberty as citizens, as well as obsolete, defunct, and an unused provision with no meaning, in the context of the needs and realities of social order in the Twenty First Century. Some critics have even gone so far as to claim that it was only ratified to preserve slavery.

The Second Amendment saw relatively little action in the courts over the first two hundred, plus years following its enactment. However, beginning in 2008, two Supreme Court cases, District of Columbia v. Heller and McDonald v. City of Chicago, changed the Second Amendment landscape faster and more significantly than had all the cases in the prior two hundred and sixteen years combined. Those two decisions also created more questions than they answered. Heller’s specific holding -that the Second Amendment protects a responsible, law-abiding citizen’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home - is relatively narrow. The McDonald decision - holding that the Second Amendment applies to state and local governments - did little to expand on that narrow holding. In many respects, the true test of determining the nature and scope of the right to bear arms has been left to the lower courts. This has created more controversy than it has resolved. Supporters of the Amendment, and its critics have drawn sides and established battle lines. Some claim the decisions have vindicated the rights of Americans who wish to arm themselves. Others claim that the decisions were outright wrong, or that the Second Amendment should be abolished as a relic of times past. Some argue that the Second Amendment was never intended to create an individual right to own and possess firearms. Instead, they argue it was intended only to preserve the ability of the states to form and arm an organized and effective militia.

Former Supreme Court Chief Justice Warren Burger stated publicly in 1991:

[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime. ²

Legal scholars, individuals and organizations, such as both the National Rifle Association, the American Civil Liberties Union, have staked out positions in this great debate.

For example, the American Civil Liberties Union has stated its policy that the right to bear arms is a collective one existing only in the collective population of each state for the purpose of maintaining an effective state militia.

Others see it quite differently:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.³

Is it accurate to assume at this point in time that the Second Amendment is safe from attack by those who wish to severely limit, or deprive, law abiding citizens of the right to keep and bear arms. No, it is not. The purpose of this book is to assist the non-legally trained citizen in understanding the Second Amendment; how it originated, what it was intended by the Founders of our nation to mean, and where we might go from here in terms of that right surviving the onslaught of attacks now being made against it in the courts, in the legislatures, and in the media. I describe it in the title as being under siege. I believe it is, and I believe that once you have read this book, you will agree. However, while battles still remain to be fought, it is the education and knowledge of the average citizen that will serve as the best tool in defeating those who would disarm us, whatever their agenda, and whatever their plan.

To establish this knowledge base, we need to go back, even before the founding of our country to understanding the philosophical underpinnings of the words that frame the Second Amendment. Where did these ideas come from, and how were they formed? We will move from that base of knowledge to the great debates that occurred during the founding of our Republic and the drafting of our Constitution. Who wrote it, what was their plan, what obstacles did they overcome, and what was their goal? What is the source of the very critical Constitutional interpretation that has found its way into cases over the last two hundred years that led the Supreme Court to rule as it did in Heller and McDonald? How solid a base do those rulings have today, and what attacks might we expect to see by those who wish to disarm us?

I hope you will enjoy the book. It is written for non-lawyers, but as so much of the substance is about the law, some reference to legal citation is necessary although I have not followed strict legal citation form. It is also heavily footnoted. I have done this so that you can understand where these words, ideas and arguments have originated. I hope you will learn from the information it contains, and I hope that it will enable you to understand and assist in forming the arguments that will inevitably be necessary as the next battle is joined.

– Jim Fleming

TABLE of CONTENTS

The Second Amendment and the American Gun

About the Cover Art

About the Author

Acknowledgement

Introduction

Historical Timeline Surrounding the Second Amendment

Glossary of Terms

Chapter 1: Origins of the Constitutional Right to Keep and Bear Arms

Chapter 2: The Militia

Chapter 3: Constitutional Interpretation – Why We Use It and How It’s Done

Chapter 4: Historical Case Law Interpreting the Second Amendment

Chapter 5: Heller v. District of Columbia

Chapter 6: The Process of Constitutional Incorporation

Chapter 7: McDonald v. City of Chicago

Chapter 8: Aftermath of McDonald/Heller

Chapter 9: Where Do We Go From Here?

Conclusion

Addendum

End Notes

The Declaration of Independence (event 1776, painted 1819 by artist John Trumbull.)

HISTORICAL TIMELINE SURROUNDING THE SECOND AMENDMENT

•Declaration of Independence (1776)

•Revolutionary War (1775-1783)

•The Articles of Confederation (Created in 1777) The formal ratification by all thirteen states was