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California police chief misunderstands Second Amendment rights

by Chris Hinyub, published

Emeryville's Chief of Police, Ken James – outspoken proponent of a measure that would criminalize the open carrying of firearms in all public areas of the state – will be attending a public forum debate on May 26th entitled, “Exploring California's Open Carry Policy.”

James has argued that AB 1934, which the California Assembly Appropriations Committee recently passed, would eliminate the imminent risk to police officers that he feels open carrying promotes.  However, the police chief isn't for criminalizing open carry for all private citizens, as he seems to favor protection for specific groups such as the Northern California Militia.

In an audio interview with KALW News, James said these illuminating words in response to a question about the rise in militia groups throughout the nation:

     “In my opinion the Second Ammendment was written to provide the ability of normal citizens to band together and form an army just like these militias are doing. So I believe the militias are totally supported by the Second Ammendment.”

Adding a little quantitative filigree to his qualitative constitutional analysis (which isn't completely devoid of substance), James went on to say that each year only one-half of one percent of Californians are victimized by violent crimes, supposedly begging the question: why the need to carry a gun for self defense?

It's not usually my style to argue quantity with quantity, but I can't help but express here my initial response to his baffling question: “Tell that to these people."  According to FBI statistics, on average 2.5 million people each year protect themselves in some way with a firearm. That's 6,849 people per day. Imagine how the police chief's statistics would be skewed if these people weren't carrying a weapon.

But let's not allow this debate to devolve into a war of statistics and anecdotal provocations.

Instead, if you plan on attending next Wednesday's forum, I encourage you to do so with a historically-minded perspective and a foundational understanding of Original Intent, at least in the context of the Second Amendment.

To fully grasp the logical fallacy Ken James is promoting when he says that militias should be afforded open carry protection yet everyday pedestrians and bystanders should not, its necessary to review the full text of the Amendment and the context of its precisly structured clauses: "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."

As it will become clear, you cannot separate the need for a “well regulated militia” with the “right of the people to keep and bear arms.”

Constitutional scholar and author, Edwin Vieira Jr., has written extensively on the historical underpinnings of the Second Amendment, especially the meaning of the term militia as it pertained to a legally mandated institution throughout Colonial and early American history.

He points out that, “from the settling of the first Colonies in the mid-1600s, 'the right of the people to keep and bear Arms' was everywhere and always coincident with a duty of the people, as individuals, to keep and bear arms for service (actual or potential) in their Colonial and then State Militia.”

A cursory reading of the Declaration of Independence will show you that our founding fathers understood the reciprocal nature of “allegiance” and “protection”, the former emanating from the citizen, the latter provided by the state. After all, it was King George III's abdication of protection which necessitated new bonds of self-government. The king's numerous attacks upon the chartered rights of his people (including gun confiscation) precipitated revolution.

So how does a “free state” protect itself in this context?

The second Amendment contains unique wording which isn't found anywhere else in the Constitution. It is the only Amendment which claims to be “necessary” to maintain a free state. Early Americans understood that with the right to bear arms came the responsibility to do so. “Nowhere will a researcher find a body of Colonial or early State laws explicitly recognizing, protecting, and even enabling the right of individuals to keep and bear arms outside of the context of the duty of each individual to keep and bear arms,” writes Vieira.

That's right, it is our lawful tradition to view gun possesion as a duty. Through the various Militia Acts of Colonial and state governments, compulsory adult male service was seen as indespensable to the security of a free state. Citizens of the several states have been tasked with keeping vigilant guard against usurpations of power by their own government while retaining the right to defend themselves and family from criminals of the citizen variety. The American people are their own police force, so to speak.

But what happens when the state renigs on its end of the second amendment bargain by interfering with each individual's inalienable right to defend their life, liberty and property? Does not that state become tyrannical and its laws null and void?

Mr. Vieira would answer this by saying “A government that refuses protection to its citizens, but instead exposes them to destruction, cannot demand their allegiance; and a government that demands their allegiance without offering them protection--let alone while prohibiting them from protecting themselves--is no government at all, only a criminal conspiracy among the public officials constituting it.”

Laws are only as binding as the legitimacy of the governments who make them. How can a limited government, a government of the people, maintain legitimacy if it deviates from the founding principles intended to keep it small, unintrusive and unoppressive?

Ken James would have you believe that protecting yourself and your family is not your personal responsibility but the duty of policy enforcers who, as I've pointed out before, will have a monopoly on open carry privileges should AB 1934 pass. (So much for Equal Protection under the law.)

Furthermore, with Concealed Carry Permits prohibitively difficult to obtain in most parts of the state, criminals would have a monopoly on concealed carry privileges.

Ironically, the coercive bodies which will inevitably arise from these monopolies are precisely what the Second Amendment was designed to prevent.

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