Should Attorney General Eric Holder be disbarred?

The Second Amendment and Holder’s refusal to recognize it

Eric Himpton Holder, now serving as the Attorney General of the United States, graduated from Columbia University in 1973 with a bachelor’s degree in American History. Thereafter he graduated from Columbia Law School in 1976. By anyone’s standards, Mr. Holder has had an accomplished career and risen to professional heights that only a distinguished few have known. Presently he is serving at one of the highest capacities for anyone in his profession—Attorney General of the United States.

Throughout his career, Mr. Holder has taken many oaths to uphold and preserve the Constitution. When he was admitted to practice in the federal court system, he had to take the following oath:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true and faithful allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Obviously Eric Holder understands both our history (since he graduated with a degree in American History from Columbia University) and our Constitution, which he swore to uphold. For clarification, the word uphold can never be interpreted to mean reconstruct, change, twist, or contort. According to Webster’s, uphold means to support or to defend.

Since Attorney General Holder has taken an oath as a prerequisite to hold office in the federal court system, if he violates that oath, should he be disbarred? That is the question this article is asking. Before that question can be answered appropriately, one must examine the reasons for asking it.

In a well-documented interview conducted on March 27, 2009, Holder stated that the government should re-institute the ban on assault weapons. This statement was made regarding his belief that doing so would have a positive influence on Mexico. First, Holder did not specify what he meant by assault weapons but it is reasonably certain that he meant guns and the like.

More disconcerting, in previous instances he had also stated that he does not believe that the Second Amendment gives individuals the right to bear arms. In a 2008 United States Supreme Court case, District of Columbia v. Heller, the Court ruled that the Second Amendment ensures an individual the right to bear arms. For clarification purposes, the word bear means to have and be entitled to and to have and use, among other things. It never means to forfeit or give up. Apparently, Mr. Holder does not agree with the Supreme Court, and he seems to have issues with the intentions of our Founders as well. So what exactly what right does Holder believe the Second Amendment was written to protect?

The Second Amendment very simply states:

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.

It would seem that the clause the right of the people to keep and bear Arms would make the Founders’ intentions clear, but Mr. Holder has argued otherwise. He has argued that the well regulated Militia means our Armed Forces. Logically it would seem absurd that anyone would think that any country needs permission in its Constitution to keep Armed Forces. It is more absurd to think that our Constitution that incorporated the first 10 Amendments known as our Bill of Rights in order to preserve and protect the rights of citizens would insert such a provision protecting our nation’s military. It is an even more absurd conclusion if one reads Article One, Section Eight of our Constitution that specifically enumerates that our government is allowed to make rules for and fund military services. Since Mr. Holder is an accomplished legal professional and a student of History, one must assume that he has read the Second Amendment, and hopefully the Constitution.

Since the words military and militia are so similar, let’s examine Holder’s claim that the Second Amendment actually referred to the country’s right to keep Armed Forces. First, we will refer to Webster’s definitions for military and militia. Webster’s defines military in several ways. In all definitions the word is used pertaining to armed forces and soldiers, or servicemen from all branches of what we call our Armed Forces. Not only is this Webster’s definition but it is how all rational today people will define the military.

Militia, on the other hand, is a word that is not commonly used today so there can be some misunderstanding as to its definition. Webster’s defines the word in three ways:

1. A body of men enrolled for military service, and called out periodically for drill and exercises, but serving full time only in emergencies.
2. In the U.S., all able-bodied males of each State between 18 and 45 years of age, considered eligible for military service.
3. A body of citizen soldiers as distinguished from professional soldiers.

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Definition one above might seem to give Holder some basis for his beliefs, but then one would have to disregard the part of the definition that states that this is for emergency situations only. Definition two has little bearing on the argument, but definition number three is quite a different matter. It makes the distinction between citizen and professional soldiers.

Perhaps these definitions help, but perhaps they also confuse. Therefore, it is necessary to go back to the time the Second Amendment was written to understand what definition our Founders understood when they used the word militia. Again, it is necessary to repeat that they allowed for our rules and funding for our armed services in Article One, Section Eight, of our Constitution, so creating a Second Amendment to repeat what was already part of the Constitution seems redundant and absurd. Sorry for the redundancy of the word absurd but it has been hard to think of a more descriptive word. One of the clearest narratives written by someone from the Revolutionary War period is from Thomas Fessenden, who fought at the Battle of Bunker Hill (also known as Breed’s Hill). In his deposition on April 23, 1775, Fessenden stated:

I, Thomas Fessenden, of Lawful age, testify and Declare, that, being in a Pasture near the meeting house, at said Lexington, on Wednesday last, at about half an hour before sunrise, I saw a number of Regular troops pass speedily by said meeting house, on their way towards a Company of Militia of said Lexington, who were assembled to the number of about one hundred in a company, at the Distance of eighteen or twenty rods from said meeting house; and after they had passed by said meeting house, I saw three Officers, on horseback, advance to the front of said Regulars, when one of them, being within six rods of the said Militia, cryed out, “Disperse, you Rebels, immediately,” on which he Brandished his sword over his head three times; meanwhile the second Officer, who was about two rods behind him, fired a Pistol, pointed at said Militia, and the Regulars kept huzzaing till he had finished brandishing his sword, and when he had thus finished brandishing his sword, he pointed it Down towards said Militia, and immediately on which the said Regulars fired a Volley at the Militia, and then I ran off as fast as I could, while they continued firing, till I got out of their reach. I further testify, that as soon as ever the officer Cryed “Disperse, you rebels,” the said Company of Militia dispersed every way, as fast as they could, and, while they were Dispersing, the regulars kept firing at them incessantly: And further saith not. (Bold added as emphasis. This deposition is listed as #13, p.346 in the Concord, Middlesex Co., Massachusetts Historical Appendix Index http://files.usgwarchives.net/ma/middlesex/towns/concord/histchapp.txt)

While Mr. Holder and his contemporaries may present a semi-plausible argument regarding the meaning of the word militia as it is used in the Second Amendment, there can be little doubt about the definition our Founders prescribed to its meaning. And there should be little doubt that Mr. Holder, as an educated and accomplished student of history and law, should have known what a brief research session has revealed.

Two questions suggest themselves:

1. Did Holder violate his oath to support and defend the Constitution of the United States when he attempted to change the meaning of the Second Amendment?
2. And if so, should Holder be disbarred?

If you would like to weigh in on this issue, you can vote in a poll by USA Today. http://files.usgwarchives.net/ma/middlesex/towns/concord/histchapp.txt. It simply asks, Does the Second Amendment give individuals the right to bear arms?’ As of the writing of this article, 97% have answered YES, 2% have answered NO, and 1% have answered UNDECIDED, for a grand total of 8,311,618 voted. According to this poll, 8,062,269 people agree with Mr. Thomas Fessenden about the meaning of the word militia, and 166,232 people agree with Holder.