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A Plan to Restore the Second Amendment

by Brian Puckett
President, Citizens of America

The Current Situation

The right of Americans to keep and bear arms is year by year being whittled away into nothingness. The enemies of the right to keep and bear arms behave as if the Constitution's Second Amendment did not exist. At this time, in individual states and in the U.S. Congress, laws are passed which ban, register, control the sale of, and limit ownership of firearms, all in contradiction to the Second Amendment.

Indeed, proponents of "gun control", whose agenda would more accurately be described as total civilian disarmament, insist that the Second Amendment is a "state's right". Or they say "It refers only to the militia, which nowadays is the National Guard". Or they even say that—despite hundreds of years of North Americans privately owning guns and almost 200 years of U.S. citizens privately owning guns—the individual right to own arms does not exist.

This has happened because gun owners have acquiesced to "reasonable" gun control laws, which in turn led to irksome laws, then to onerous laws, and now to a furious onslaught against every aspect of the gun culture. The motive behind those pushing the anti-gun crusade seems to range from complete ignorance of historically proven societal benefits of an armed citizenry to a desire for one world government, the establishment of which demands the disarmament of U.S. citizens reluctant to join in such a scheme. In any case, their agenda need not concern us at the moment. It is one particular prerequisite of their agenda—the gutting and/or elimination of the Second Amendment—that we must focus upon.

The Losing Strategy

We can, year after year, fight existing laws piecemeal, only to have similar but re-worded laws passed to replace them. We can, year after year, muster together in our cities and states and fight by political means the hundreds of proposed new laws, winning some and losing some. We can, year after year, donate millions of dollars to the NRA and to politicians, though both have agendas that often do not coincide with the clear, unfettered exercise of the Second Amendment. But it is obviously a losing strategy, since over the last few decades we have steadily lost ground.

The reasons for this are many. They include the effect of anti-gun propaganda generated by the government and communications media, and the failure of increasingly socialized, urbanized, history-illiterate citizens to understand the importance of an armed citizenry in maintaining freedom. Also included is the fact that the largest gun-rights organization, the NRA, has no courts-related strategy for regaining our lost rights, or even maintaining the status quo. Their plan, and the plan of the gun community in general, is the tactical non-plan of simply reacting to the assaults of the anti-gun forces.

Another reason our current piecemeal strategy doesn't work is that it costs a politician nothing to craft a new anti-gun law and put it up for a vote—year after year. Gun owners, however, must spend time and money and effort every time they do this, year after year, and fatigue sets in. Eventually, the public backlash and political feedback against proposed laws weakens and the anti-gun law is passed.

An Overview of the Problem

Gun control laws are what might be referred to as a "top down" problem. That is, the laws attack and eat away at the hundreds of details associated with keeping and bearing arms, e.g. restrictions on carry mode, transportation, storage, magazine capacity restrictions, firearm types, firearm design, etc. In the aggregate these restrictions have in many parts of the U.S. effectively nullified the Second Amendment.

Anti-gunners are able to impose these laws and keep them in force because of a single fundamental reason: such laws have never been subject to a clear, direct challenge on the basis of the Second Amendment. The judicial limbo created by a lack of Second Amendment cases in the Supreme Court has enabled anti-gun laws to thrive like scum in a stagnant pond.

A New Strategy

My proposal is this: Challenge in state and federal court any and all gun control laws on the basis of the guarantee contained in the Second Amendment.

As opposed to the old top down tactics, this new strategy attacks the problem from the bottom up; that is, it attacks from the fundamental principle—the Second Amendment. The intent is to lay the foundation for sweeping away all unconstitutional firearm restrictions.

This strategy differs from past tactics in that it is proactive rather than reactive, and that it places the battle in the courts rather than in the arena of politics. This is essentially the strategy successfully used by the liberal/socialist segment of this society to promote their agenda. Furthermore, it is the best in terms of getting the most for each dollar spent. What if the NRA, for example, instead of dumping millions of dollars on politicians to buy their fickle and temporary allegiance, had years ago begun spending these huge sums in pursuing court cases to protect our rights? The ACLU knows how the system works and has had great success via the courts. We can too.

We wish the U.S. Supreme Court to rule on the individual right (that it is not somehow a "state right") aspect of the Second Amendment; on the "supreme law of the land" aspect of the Second Amendment (that this right may not be abrogated by state law); and upon the "militia weapon" aspect of the Second Amendment (that ownership of firearms of military utility are protected by the Second Amendment).

Primary Tactic

The immediate goal is for individuals, private groups, or organizations to file Second Amendment violation lawsuits in every city and state. By sheer numbers, this will force examination of this issue by the U.S. Supreme Court. Some cases will be lost in the lower courts where they are filed, but others will be won, sometimes in areas of law that are completely unexpected (consider the recent Emerson case in Texas, which may well lead to a Supreme Court case).

Win or lose, the cases will be appealed by one side or the other and go on to appellate courts. Further appeals will subsequently generate differing U.S. Circuit court decisions, and these will lead to Supreme Court cases.

Arguments For and Against

The most common argument against Second Amendment based lawsuits is, "What if we lose?" The simplest and clearest answer is that we have already lost and have nothing else to lose. The juggernaut coalition of fools, "pacifists", weapon-phobes, utopianists, one-world statists, and political opportunists—all aided by the western communications media—have created an anti-gun sentiment of overwhelming force. Steadily, every year, our gun rights shrink as more and more laws are passed.

By means of state and federal legislation, every fundamental principle relevant to the Second Amendment has been violated—freedom to bear arms in public, government permission to own or carry, firearm transport, bullet design, firearm storage, firearm style/design, magazine capacity, arbitrary designation as a "destructive device", waiting periods, limits on purchases per month. Every one of these aspects of gun law establishes a precedent which—unless challenged now--can and will be expanded upon to virtually eliminate the Second Amendment.

For example, if a five-day waiting period is allowable and good as a "cool down" period, then six days, ten days, or one month would be better. If a ten-round magazine is reasonable and good because it supposedly provides an interval in which a lunatic shooter can be overcome while he reloads, then a five-round magazine, or single shot firearms, are better. If banning military looking semi-autos is reasonable and good, then banning all semi-autos—since the difference is merely cosmetic—is best.

And now a new anti-gun campaign has just been initiated, directed toward owners of scoped .50 BMG caliber rifles. The anti-gun propagandists intend to whip up a fear frenzy against the rifles by stating that they can accurately kill a target up to 2,000 yards away. Of course this depends upon the marksman, but if they succeed in having such firearms banned, the principle has been established. If being able to shoot someone 2,000 yards away with a .50 caliber rifle is bad, isn't it really just as bad to be able to shoot someone 1,500 yards away with a .338 Lapua rifle? And isn't that just as bad, really, as being able to shoot someone 1,000 yards away with a 7mm magnum, or 800 yards away with a .308? And so on down the line.

Again, the bottom line is that, legislatively speaking, we have already lost the battle of fundamental principles relevant to keeping and bearing arms. And though we still have limited access to our firearms, a continuation of current legislative trends will eventually wipe out the last vestiges of the Second Amendment.

That is why we must bore through the upper layers of legislative morass and reach the bedrock of the Constitution.

An Overview of the Supreme Court Situation

The good news is that we have the Constitution on our side. The bad news is that the Supreme Court does not necessarily base its decisions on Constitutional matters upon the Constitution. They may rule against us in one or more areas.

And yet it is my opinion that (1) they are more likely to rule for us on the fundamentals, and that (2) it will probably be just as positive if they rule against us. Therefore, the important thing is that they make a decision.

The basis of my opinion concerning the probability of the Supreme Court ruling positively on all three aspects of the Second Amendment mentioned is that we have a huge body of history, tradition, founders' documents, and actual case law on our side.

This is especially true regarding the issue of the Second Amendment referring to an individual right. The history, tradition, founders' documents are all well known to most gun rights activists and are well documented in books such as That Every Man Be Armed, by Stephen P. Halbrook.

As for case law, past Supreme Court cases which mention or include the Second Amendment as referring to an individual right are Robertson v. Baldwin, 165 U.S. 275, 282, (1897); Twining v. New Jersey, 211 US 78 (1908); Powell v. Alabama, 287 US 45 (1932); Grosjean v. American Press Co., 297 US 233, (1936); Gideon v. Wainwright, 372 US 335 (1963); Duncan v. Louisiana, 391 US 166 (1968); Moore v East Cleveland, 431 US 494 (1976) United States v. Verdugo-Urquidez, 494. U.S. 259, 265 (1990); Planned Parenthood vs. Casey, (1992).

There are several other cases relevant to this issue. An excellent analysis of the Constitutional factors involved vis-à-vis a Supreme Court decision on the Second Amendment may be found in Sanford Levinson's treatise "The Embarrassing Second Amendment", Yale Law Journal Vol. 99, pp. 637-659. (It is published as a small booklet and it can be read at

Another very important factor on our side is millions of armed Americans who have no intention of giving up their personal right.

The likelihood of the Court sweeping aside all of the above and ruling that the Second Amendment suddenly does not refer to an individual right would seem to be remote.

The issue of the Second Amendment not being the supreme law of the land, i.e. not being an "incorporated right" such as freedom of religion, press, speech, etc., all of which states may not abrogate, is somewhat less certain, but only somewhat. The fact is, the Second Amendment is worded like other amendments referring to an individual right, is placed with other individual rights amendments in the Bill of Rights, is supported as referring to an individual right by the vast majority of scholarly writings on the subject, and has been treated as referring to an individual right in past jurisprudence since before the inception of the nation. Further, any diminishment of the Second Amendment as referring to an individual right places other individual rights protected by the Bill of Rights in danger of being similarly eroded or voided by whimsical future rulings. It is doubtful that the Supreme Court will sweep all of this aside, either.

Finally, the "militia" issue—that is to say, the principle that citizens are the militia and have the right to own military type weapons, would seem to be the most obviously supportable of all. After all, the Second Amendment specifically mentions the militia as a paramount reason for citizens to keep and bear arms. Further, founders' writings, history, tradition, and an utterly clear definition in U.S. Code of the militia as being comprised of ordinary citizens all support our side.

It has been asked, "Well, what if the Supreme Court upholds this militia issue strictly? Might we not end up with a situation in which only male U.S. citizens between the ages of 17 and 45 and female members of the National Guard may keep and bear arms, and the only arms they may keep and bear are military rifles firing military ammunition?"

This is absurd on its face. To begin with, the Second Amendment states "…the right of the people to keep and bear arms…". It does not state "…the right of the militia to keep and bear arms…". The militia is merely the reason cited for protecting the people's right to keep and bear arms, and the word "people" used in the Bill of Rights is unambiguous.

Second, in this day and age the Supreme Court is not going to make any ruling that forbids women, but not men, to exercise a basic right.

And third, as for the Court deciding that Americans can only own militarily useful firearms, the fact is that virtually every sort of firearm—revolvers, pistols, shotguns, submachine guns, semi-auto rifles and carbines, and scoped and un-scoped bolt-action rifles, and high capacity magazines for those firearms that utilize magazines—are, or have been, used by the military. What is left to be banned?

Is the Worst Case Scenario Actually Bad?

But let us assume that the Supreme Court--in defiance of morality, history, tradition, Constitution, and case law—rules that the Second Amendment does not mean what it says. In my opinion it will be better for this to happen sooner rather than later. The more time that passes, the more time there is for the government and the communications media to propagandize against guns. As more time passes, more people will become habituated to loss of rights; more younger people, ignorant of American and world history due to spending time in government (public) schools, will reach voting age; more older people, for whom country and Constitution are meaningful and worth fighting for, become infirm or pass away. The tide seems to be turning against government school indoctrination, but for the foreseeable future the government has the upper hand in the sheer number of children it indoctrinates.

Another point: there are an estimated 80 to 100 million gun owners in the United States. The number of gun owners actively engaged in defending the right to keep and bear arms is only a fraction of this number. A negative Supreme Court ruling on the Second Amendment would give a sharp, wakening slap in the face to all the gun owners who have done nothing in the fight for gun rights. The idea of 80 to 100 million people suddenly becoming a motivated political bloc does not strike us as a negative development. That many people agitating against a government which has just abrogated a fundamental right can, in short order, effect a reversal of government policy.

And finally, a negative Supreme Court ruling on the Second Amendment will serve notice to all Americans that the fundamental charter of the land is not worth the paper it is printed on, and that the social, political, and legal compact which has held this country together for over two centuries and has made it the greatest nation in history is broken. Any illusions about the direction the political/financial elite wishes the United States of America to take will be shattered. Many—and it will not take that many-- will then be ready and willing to take up arms to restore a Constitutional United States of America.

Whether such an armed conflict, indeed even a civil war, is preferable to America's accelerating slide into oppressive socialism and eventual submission to a world government is up to each individual to decide.

What you can do to move this plan forward NOW

Fortunately, actions which will push this plan forward to completion are simple, relatively inexpensive, can be taken NOW, need not be coordinated with any person or any organization, and need not be reported back to any person or organization. Additionally, they may produce a side benefit of eliminating local anti-gun ordinances and causing some legal financial pain to any government entity that has abrogated your civil firearms rights.

Your action—done by yourself or in conjunction with any group of supporters you wish to include—is to file a lawsuit based on the Second Amendment's guaranteed right to keep and bear arms. Such suits should be filed against any and all statutes or ordinances that infringe upon your right to keep and bear arms.

While it might seem best to file them in "conservative" jurisdictions where there is a better chance of leaping the lower court hurdle, the fact is that if the pro-Second Amendment case wins at this level, the government will appeal. If the pro-Second Amendment case loses at this level—as may be expected in most cases—we then have the opportunity to move up to the next level on appeal, which is just as productive in terms of the ultimate goal of Supreme Court review. In any event, it is our duty as citizens to make continued attacks in all jurisdictions upon these unconstitutional laws. This is because the absence of any resistance whatsoever normalizes and eliminates the cost—in time, money, and resources—of governmental abrogation of our rights.

The cost to initiate such legal actions is small. The cost to pursue them varies per case, and as it progresses, one may wish to request financial support from gun owners, pro-gun organizations, foundations, etc. The Lawyers Second Amendment Society and intend to provide a forum for such requests. It is vital to remember that history shows that it is impossible to predict which particular court case will end up before the Supreme Court, no matter how small or how tangential in context.

For anyone who is hesitant to take on this legal battle, I urge you not to make the grave mistake of waiting for some "authority" or some "official" person or organization to file these suits This attitude leads to procrastination, loss of motivation, and failure. The saying "If you want something done, do it yourself" is perfectly applicable here.

I further urge you not wait for some "expert" to pass judgement on this strategy. In this situation, with so many factors and variables involved, there are no experts. Read this article again, if necessary, and decide for yourself. Rest assured that the surest path to failure is if you do nothing.

For those who wish to file suit, you should consider utilizing the text of the Emerson case in Texas as a model for your claim. To view this case, go to: and click on "Notable Cases." It is easy to read and understand even for a layman. Additionally, I suggest that you (1) utilize an attorney experienced in state and/or federal level litigation, and (2) locate a court with judges likely to rule in our favor. If the above items are not possible I say file the case anyway. The alternative is to do nothing, which will get you nothing. The worst that can happen is that you will end up before an unfriendly judge who will rule against you no matter how good a case you place before him, in which case you appeal. Your appeal may end up before a favorable appellate judge. In any event, lower court decisions mean little these days in terms of setting a legal precedent. It is in the appeals courts that the stakes are raised and we are shooting for Supreme Court review, which in our situation is the only one that really matters any more--win or lose.

For anyone who is fearful of the troubles that engaging in this fight will bring on, I ask you, will you allow your birthright as an American to be so easily erased, to be legislated into oblivion by the collusion of a few weak-minded socialists? If so, we have become pathetic shadows of the men who created this nation and the awesome document outlining its government.

For those who complain that it is too expensive to fight this legal battle, I say that it is best to fight now, when the cost is merely money and a little time, than to wait until the cost of overturning the wretched police state planned for us must be paid in blood and lives.


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By a very conservative estimate, a hundred million people have died at the hands of their own governments in this century. Given that record, how bad could anarchy be? — Joseph Sobran

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