Bill of Rights can’t be al­tered without an amend­ment

Westside Eagle-Observer - - OPINION - By Harold Pease, Ph.D

The present as­sault on the Sec­ond Amend­ment re­minds us of the 2013 West­ern States Sher­iff’s Re­bel­lion stop­ping cold Pres­i­dent Barack Obama’s new 23 ex­ec­u­tive or­ders fur­ther re­strict­ing the rights of gun own­ers without au­tho­riza­tion from Congress. But today Repub­li­cans need to be re­minded that nei­ther the ex­ec­u­tive branch, through ex­ec­u­tive or­ders, nor the leg­isla­tive branch, through laws, can con­sti­tu­tion­ally leg­is­late away an amend­ment of the Bill of Rights. There­fore, ban­ning AR-15s or bump stocks is un­con­sti­tu­tional. Only a new amend­ment with the sup­port of three-quar­ters of the states, as out­lined in Ar­ti­cle V of the Con­sti­tu­tion, can al­ter an amend­ment.

Many may not re­mem­ber their ba­sic U.S. His­tory cour­ses as to why the Sec­ond Amend­ment ex­ists in the first place. Cer­tainly, when en­acted, there was no thought of re­strict­ing the type of firearm, or where or who could carry. So its place­ment as the sec­ond most val­ued free­dom in the Bill of Rights had noth­ing to do with personal safety or even hunt­ing; these were al­ready as­sumed. It was specif­i­cally placed right af­ter free­dom of re­li­gion, speech, press and assem­bly to make cer­tain that these free­doms were never taken from us. It was aimed (pun in­tended) squarely at the gov­ern­ment.

But, cer­tainly, we need have no fear of the gov­ern­ment today? One must re­mem­ber that the early pa­tri­ots did not ask the ex­ist­ing Bri­tish gov­ern­ment if they could rebel against it. They ar­gued in The Dec­la­ra­tion of In­de­pen­dence, that they were “en­dowed by their cre­ator with cer­tain un­alien­able rights, that among these are life, lib­erty and the pur­suit of hap­pi­ness” com­ing from a much higher source than mere man and, that “whenever any form of gov­ern­ment be­comes de­struc­tive of these ends, it is the right of the peo­ple to al­ter or to abol­ish it, and to in­sti­tute new gov­ern­ment.” God is ref­er­enced five times in this doc­u­ment and thus, they be­lieved, He sanc­tioned their re­bel­lion. They were ex­pected to suf­fer evils while suf­fer­able, “but when a long train of abuses and usurpa­tions, pur­su­ing in­vari­ably the same ob­ject, evinces a de­sign to re­duce them under ab­so­lute despo­tism, it is their right, it is their duty, to throw off such gov­ern­ment, and to pro­vide new guards for their fu­ture se­cu­rity.”

The right of rev­o­lu­tion re­quires the means of rev­o­lu­tion and this is why the Sec­ond Amend­ment ex­ists. Nor­mally, the bal­lot box is the only self-cor­rec­tion needed; but they had no in­ten­tion of giv­ing up the same right that they ex­er­cised to give us free­dom in the first place. Nor were they pi­ous enough to as­sume that their cor­rec­tion would stay in place and that fu­ture gen­er­a­tions would never need the more se­ri­ous kind of self-cor­rec­tion they used.

The wordage of the Sec­ond Amend­ment was stronger than any other sen­tence in the Con­sti­tu­tion. “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.” They saw this right as es­sen­tial to free­dom and specif­i­cally for­bade the fed­eral gov­ern­ment any author­ity with re­spect to arms be­cause, his­tor­i­cally, it was al­ways a gov­ern­ment that took away lib­erty.

An armed pop­u­lace had twice proved its value to lib­erty in the Rev­o­lu­tion­ary War. Many do not re­mem­ber why Lex­ing­ton and Con­cord were so im­por­tant.

The Amer­i­cans learned that the Bri­tish planned to go door-to-door to con­fis­cate their firearms, so they gath­ered and hid them in these two vil­lages. Now the Bri­tish night gun raid, and Paul Re­vere’s des­per­ate mid­night ride warn­ing the Amer­i­cans en route make sense. The Bat­tle of Saratoga pre­vent­ing Bri­tish con­quest of the north­east by Gen­eral Johnny Bur­goyne was stopped, not by the mil­i­tary, but by an­gry farm­ers with their own mil­i­tary-style as­sault ri­fles. This Amer­i­can vic­tory en­cour­aged other coun­tries, no­tably France, to come into the war on our side. It is doubt­ful that we would have won the war without an armed cit­i­zenry.

The Founders’ at­ti­tude regarding guns — even mil­i­tary issue — was clear. Thomas Jefferson wrote: “No free man shall ever be de­barred the use of arms.” And Ge­orge Wash­ing­ton said: “A free peo­ple ought not only to be armed,” but also, “they should pro­mote such man­u­fac­turies [sic] as tend to re­mind them in­de­pen­dent of oth­ers for es­sen­tial, par­tic­u­larly mil­i­tary, sup­plies” (Gun Con­trol, Freemen Re­port, May 31, 1975, p. 1).

The Utah Sher­iff’s As­so­ci­a­tion letter to Obama was the most vo­cal in the Sher­iff’s Re­bel­lion of 2013. It read in part, “We re­spect the Of­fice of the Pres­i­dent of the United States of Amer­ica. But, make no mis­take, as the duly-elected sher­iffs of our re­spec­tive coun­ties, we will en­force the rights guar­an­teed to our cit­i­zens by the Con­sti­tu­tion. No fed­eral of­fi­cial will be per­mit­ted to de­scend upon our con­stituents and take from them what the Bill of Rights — in par­tic­u­lar, Amend­ment II — has given them. We, like you, swore a solemn oath to pro­tect and de­fend the Con­sti­tu­tion of the United States, and we are pre­pared to trade our lives for the preser­va­tion of its tra­di­tional in­ter­pre­ta­tion.”

This is com­mend­able, but will Congress, under Repub­li­cans, re­mem­ber that an amend­ment, un­like a law, may not be al­tered to de­stroy or weaken it — “shall not be in­fringed?” The Sec­ond Amend­ment can only be al­tered by three-quar­ters of the states with a new amend­ment, and this is not likely to hap­pen when so many Amer­i­cans fear their own gov­ern­ment.

Harold W. Pease, Ph.D., is a syn­di­cated colum­nist and an ex­pert on the United States Con­sti­tu­tion. He has ded­i­cated his ca­reer to study­ing the writ­ings of the Found­ing Fa­thers and ap­ply­ing that knowl­edge to cur­rent events. He taught his­tory and po­lit­i­cal sci­ence from this per­spec­tive for more than 30 years at Taft Col­lege. To read more of his weekly ar­ti­cles, please visit www.lib­er­tyun­der­fire.org.

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