The Second Amendment and the Seizure of California’s National Guard

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

Initial proposition that would become the Second Amendment

Several weeks ago under the pretext of executive power and spurious claims of out of control wide-spread protests and violence, Trump seized California’s National Guard and turned it on the citizens of Los Angeles.  Protest is not insurrection or rebellion; it is the fight to assemble and protest government actions and policies. Local police authorities in Los Angels City and County have tens of thousands of officers and the capability and will to control any lawlessness by a minority of protestors. 

California sued. The initial ruling in federal court was that the activation of the California National Guard was illegal. The 9th Circuit Court of Appeals stayed the ruling almost immediately and recently ruled that Trump may continue to to retain control of the California National Guard while the State’s lawsuit continues.  California did not make a second amendment argument, but I think it should have.  I argue that Trump’s seizure of the California National Guard is a fundamental violation of the Second Amendment’s original intent.  

The first federal Congress in 1789, fearing the possibility of one day having a despotic central government, wanted to amend the Constitution to restrict the federal government’s ability to strip state militias of the ability to ‘bear arms’ (among other things). That is essentially the states’ abilities to individually or collectively resist a repressive federal government.  California’s National Guard is just such a well-regulated militia.

By seizing the California National Guard and deploying it against the wishes of the governor, Trump took away California’s right to defend itself from a despotic and corrupt President and central government.  Adding insult to injury, active-duty Marines were also deployed to Los Angeles.

If you read the Congressional debates and follow the revisions surrounding the Second Amendment, the original intent of the Second Amendment was to prohibit the federal government from seizing or disbanding state militias.  Unfortunately, the Supreme Court has so mangled and distorted the amendment in the past decades that the second amendment’s original intent is unrecognizable. 

On June 8, 1789 — 236 years ago this month — James Madison introduced nine propositions or resolutions for amending the Constitution. From these propositions the House of Representatives would derive 17 amendments, of which, ten would eventually become what is known as the Bill of Rights. Way down the list, buried in proposition four, after statements about religious freedom, freedom of speech and press, the right to peaceable assembly and petitioning for redressing of grievances, Madison, proposed what would become the second amendment.

The Annals of Congress contains the record of the running debates surrounding the amendments to the Constitution and reflect contemporaneous conceptions of the meanings of these amendments, and how they changed over the debates. Madison, borrowing from the other state constitutions and even the 1689 English Bill of Rights, proposed the following language regarding the right to bear arms (House Records, pp. 451-452):

“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

Madison’s propositions did not gain much traction in Congress. Members of Congress were more concerned with the mechanics of setting up a functioning government. The debates preceding and surrounding the discussions on the proposed amendments centered on funding mechanisms and structure of the various executive departments being contemplated. Madison nonetheless persisted, and on July 21 requested further consideration of the amendments. After “desultory” conversation on the amendments, they were referred to a committee of eleven, which included Madison.

Just short of a month later, the committee of eleven finished their work on the proposed amendments and presented them to the House of Representatives on August 17. Madison’s language on bearing arms was revised and read:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms (House Records, p.778)

Eldridge Gerry of Massachusetts, a veteran of the constitutional convention in Philadelphia in 1787, and who was one of three delegates who refused to sign the Constitution at the end of the convention, led the debate regarding the amendment to bear arms. His remarks are crucial, I think to understanding, the intent of this amendment. He states:

“This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed (p. 778).”

Not one person during the debate contradicted or challenged Gerry’s assertion, which seems to state that the ability to keep and bear arms referred to the people’s ability to form militias as a collective defense against a tyrannical central government. The remainder of the debate that day on this amendment surrounded primarily the question of religious scruples and service in the militia.

After more “desultory” (I love that word) conversation, 17 proposed amendments to the Constitution were sent to the Senate on August 24. The bearing arms amendment was number 5 and read after some minor tweaking (Senate record, pp. 63-64):

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

On September 4, the senate, whose records of debate are not as detailed as the House’s records of debate, showed that senators objected to a few of the amendments, but without comment as to why. “On the motion to adopt the fifth article of the amendments proposed by the House of Representatives, amended to read as followeth: ‘a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed:’ It passed in the affirmative” (Senate Record, p. 71).

That senate version is today’s second amendment.

Trump’s actions run counter to the second amendment and are provocative and meant to inflame the citizens of Los Angeles and California.  He deliberately and recklessly tried to provoke a larger conflict and failed.  Now, instead of quelling protests, they are being used as an occupying army – with police powers – to accompany militarized ICE agents.  

It is not a good sign of democratic health when federal law enforcement agents dress and act like soldiers and the military act like police officers.  The stark historical difference between civilian police and the military are dangerously blurred and will eventually disappear.  For a president who increasingly sees military action as a solution to both domestic – blue states — and overseas issues we will witness an increase of National Guard activations and deployments to suppress domestic opposition soon I fear.  

If the Supreme Court sides with Trump, how will we, denizens of Virginia, defend itself from Trump’s provocations, corruption, and illegalities when Abigail Spanberger is elected governor this November and Virginia becomes a State with a blue governor?