The Insane Rationalizations, Bigotry And Hypocrisy Of The Right

[Paul G.]

 

 

 

1st amend is not about an implement. 2nd is. Both refer to a body, the press and the militia. One of which is no longer relevent.

That is true and it is not true. 1st is about an action. 2nd is both an object and an action, bare (sic) and not just keep.

Sure an action involving implements. Bear is understood to be in a military context.

[rmgill]

 

 

 

1st amend is not about an implement. 2nd is. Both refer to a body, the press and the militia. One of which is no longer relevent.

That is true and it is not true. 1st is about an action. 2nd is both an object and an action, bare (sic) and not just keep.

 

 

Printing presses are objects. Books are objects. Banning the publication of books to accomplish some sort of societal goal is about both the act of exercising the right AND using the tools.

 

 

[rmgill]

Now about the NRA thing;

 

https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856_Page2.html

 

From 1888, when law review articles first were indexed, through 1959, every single one on the Second Amendment concluded it did not guarantee an individual right to a gun. The first to argue otherwise, written by a William and Mary law student named Stuart R. Hays, appeared in 1960. He began by citing an article in the NRA’s American Rifleman magazine and argued that the amendment enforced a “right of revolution,” of which the Southern states availed themselves during what the author called “The War Between the States.”

At first, only a few articles echoed that view. Then, starting in the late 1970s, a squad of attorneys and professors began to churn out law review submissions, dozens of them, at a prodigious rate. Funds—much of them from the NRA—flowed freely. An essay contest, grants to write book reviews, the creation of “Academics for the Second Amendment,” all followed. In 2003, the NRA Foundation provided $1 million to endow the Patrick Henry professorship in constitutional law and the Second Amendment at George Mason University Law School.

This fusillade of scholarship and pseudo-scholarship insisted that the traditional view—shared by courts and historians—was wrong. There had been a colossal constitutional mistake. Two centuries of legal consensus, they argued, must be overturned.

 

From 1888 when case law was following the rediculous assertions about keeping blacks from owning guns (Cruikshank).

 

Try looking a bit before that.

 

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

 

 

 

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the appendix to the Commentaries, Tucker elaborates further:

 

 

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

 

 

[Paul G.]

 

 

 

 

 

1st amend is not about an implement. 2nd is. Both refer to a body, the press and the militia. One of which is no longer relevent.

That is true and it is not true. 1st is about an action. 2nd is both an object and an action, bare (sic) and not just keep.

Printing presses are objects. Books are objects. Banning the publication of books to accomplish some sort of societal goal is about both the act of exercising the right AND using the tools.

 

Neither explicitly referenced in the Constitution.

 

1st would be comperable with the 2nd if it was the right of self defense.

[rmgill]

 

Neither explicitly referenced in the Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

 

 

 

Oddly, enough I see an object, a mechanism which is fundamentally connected to a right.

 

In ACLU v Reno the Supreme Court unanimously upheld protections of the internet and speech exercised over that medium, a medium which is yet another large mechanism which was utterly unforeseen by the founding fathers.

 

Banning books is prohibited.

Banning speech is prohibited.

Banning printed material is prohibited.

 

Sure, there's no explicit mention of books in the 1st amendment because it's implicitly understood that the printed material is fundamentally connected to freedom of the press.

 

Paul, you really need to catch up with cases like ACLU v Reno and Ezell v Chicago.

 

 

[rmgill]

And Last Dingo, I have to laugh heartily at your Slate Article which points to Miller in 1939 as not protecting an individual right to own firearms when the citation itself points to text like this:

"By an Act passed April 4, 1786 the New York Legislature directed: "That every able-bodied Male Person, being a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are hereinafter excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. . . . That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . .""

Sure, there's no individual right there. People buy and own their own arms at their own expense along with ammo and other kit.

Then there's the KEY bit of Miller:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

I don't know about you, but that reads to me that IF the weapon DOES have a reasonable relationship to the preservation of a well regulated Militia, then the weapon WOULD be protected by the 2nd amendment.

Miller didn't find that common citizens didn't have a right to firearms. Miller found that a short barreled shotgun didn't find protection under the 2nd amendment because no evidence was GIVEN that they WERE useful to military/Militia service. Such ignores that trench shotguns were QUITE useful in Military Service just ~20 years prior. They were so effective you Germans were squealing over it. What you probably don't understand is that the scope of gun regulations up through the 1900s was aimed at restricting arms used by criminals and which weren't typical for Militia use. Trying to turn that on it's head and say that Military Arms aren't covered while also arguing that Civilian only arms aren't covered is obtuse at best and deliberately disingenuous at worst.

Perhaps you're not aware that Miller didn't respond to the appeal and that the case was heard with no attorney from the defense representing the case. Miller was iirc dead at the hearing of the case before the US Supreme Court and his attorney was unable to travel to DC (a several day trip by many trains).

Seriously, you should get your law sources from something other than Slate and Vox. You'll be less ridiculous that way.

Here's some research by an actual attorney who specializes in firearms law (Dave Hardy used to be an attorney for the US department of the Interior) with various citations to reasearch on Miller in particular.

Edited October 28, 2017 by rmgill

[lastdingo]

Someone please teach him the difference between a right and a duty. This is simply too stupid. He can't understand simple texts.

 

A shotgun is also a musket since it's smooth bore. The NRA does not claim that only those who were notified of their enrollment in the well-regulated militia (which is actually the national guard since the law of 1903) have the right to bear arms, which makes the quoted ruling unsupportive of the NRA propaganda. Moreover, the ruling supports that the right to bear arms is linked to a well regulated militia, not a free-standing individual right.

 

"the press" is not the same as "printing press". is point was that the hardware "press" was not mentioned in the constitution, and he was correct.

 

 

The 1813 quote is supportive of the anti-NRA stance that points out that the right to bear arms is meant for collective use through a militia, not an unlimited right to buy whatever weapon and how many weapons you want.

The NRA's position is bullshit which can be shown easily (I did it before, but some brains are less inclined to take in info than others):

 

An unlimited right to bear arms that shall not be infringed by laws would allow a murderer who escaped prison to legally buy a M249 SAW with thousand rounds of munition with money lent to him by a friend.

Almost any non-crazy human adult would understand that this cannot be, and the constitutional right must thus not be interpreted as unlimited.

Which in turn gives Congress the right to interpret it and set a line wherever it wants.

The whole 2nd Amendment wanking by NRA and its useful idiots is bullshit.

[Paul G.]

 

 

Neither explicitly referenced in the Constitution.

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

 

 

 

Oddly, enough I see an object, a mechanism which is fundamentally connected to a right.

 

In ACLU v Reno the Supreme Court unanimously upheld protections of the internet and speech exercised over that medium, a medium which is yet another large mechanism which was utterly unforeseen by the founding fathers.

 

Banning books is prohibited.

Banning speech is prohibited.

Banning printed material is prohibited.

 

Sure, there's no explicit mention of books in the 1st amendment because it's implicitly understood that the printed material is fundamentally connected to freedom of the press.

 

Paul, you really need to catch up with cases like ACLU v Reno and Ezell v Chicago.

 

Good point on the term 'press'. However, 1st does not say...'freedom to keep and operate presses'. It is specifically refering to the organized body of people that operate presses. So in this context presses do not equate to arms. The press equaits to the militia. A body of people that bear arms.

 

The freedom in the 1st is to speak, understood as expression both verbally and in writing. It refers to the action of expression, not the implement. The impliment is not specified. The 'press', a term still relevent today, refers to an organized body of 'speakers'. While yes the press was a method, in this usage it is refering to the users.

 

The freedom in the 2nd is 'keeping' and 'bearing'. Both are meaningless without the implement specified. Also the use of the term 'bearing' has a specific meaning. It is only relevant in terms of an organized body,one that is specified in the amendment. From a linguistic standpoint the 1st and 2nd cannot be more clear in how they define their intent.

[seahawk]

It is quite clear that assault rifles are protected by the 2nd amendment then.

[Marek Tucan]

Heck, tanks are one could argue for nukes.

[Paul G.]

It is quite clear that assault rifles are protected by the 2nd amendment then.

That is a valid interpretation of the 2nd. The question is whether it is relevant today in reference to the original intent.

[rmgill]

Someone please teach him the difference between a right and a duty. This is simply too stupid. He can't understand simple texts.

Yes. Please. I don't see DUTY in the RIGHT of the People text.

 

Jury service is a duty too. That's not indicative of any allowable restrictions on speech or anything else.

 

A shotgun is also a musket since it's smooth bore.

Sort of. You didn't shoot at birds with a musket, not to any useful effect. A Brown Bess with a loose fitting ball for fast loading was the assault rifle of the era. Those were protected.

 

There were separately designed bird guns with features which made them more appropriate for shot vs ball. Perhaps you've heard of a blunderbuss? There are extant writings of the time complaining of very poor militia showing up for muster with bird guns which were not very useful for fighting men at 100 yards.

 

Rifles were extant in the era and Citizens owned those. Those were protected.

 

 

The NRA does not claim that only those who were notified of their enrollment in the well-regulated militia (which is actually the national guard since the law of 1903) have the right to bear arms, which makes the quoted ruling unsupportive of the NRA propaganda. Moreover, the ruling supports that the right to bear arms is linked to a well regulated militia, not a free-standing individual right.

 

WRONG! Here it is in BLACK AND WHITE.

 

 

 

10 U.S.C. § 311 - U.S. Code - Unannotated Title 10. Armed Forces § 311. Militia:  composition and classes

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 , under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

 The classes of the militia are--

 [u][b]the organized militia, which consists of the National Guard and the Naval Militia;  and
[/b][/u]
 [u]the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.[/u]

 

 

 

Can you perhaps realize that there's more than just the BIG EVIL NRA on this 2nd amendment law business? Trying to distill it down to JUST the NRA makes you seem like you're not looking at anything but common press on the subject.

 

And No, the militia is actually by CURRENT LAW, two bodies of people.

 

 

"the press" is not the same as "printing press". is point was that the hardware "press" was not mentioned in the constitution, and he was correct.

The printing press and the press are inextricably linked. You can't have one without the other.

 

 

The 1813 quote is supportive of the anti-NRA stance that points out that the right to bear arms is meant for collective use through a militia, not an unlimited right to buy whatever weapon and how many weapons you want.

The NRA's position is bullshit which can be shown easily (I did it before, but some brains are less inclined to take in info than others):

The collective ownership by ever many over age 17 is part of the benefit to society. The individual ownership is how it's effected. Its like inoculation against disease. IF not enough people have it you have greater problems.

 

 

 

 

The 2nd amendment is not a protection of the government and it's officers to own firearms.

 

The whole 2nd Amendment wanking by NRA and its useful idiots is bullshit.

Blahblahblahblahblah.

[rmgill]

Good point on the term 'press'. However, 1st does not say...'freedom to keep and operate presses'.

Because the founding fathers didn't think one had to spell it out to the N'th detail for government functionaries who can't put tab A into Slot B without out a step by step set of instructions with pictures and a trainer to shoe them 10 Times before they can pass the qualification.

 

It is specifically refering to the organized body of people that operate presses. So in this context presses do not equate to arms. The p

ress equaits to the militia. A body of people that bear arms.

A body of people operating presses to promulgate IDEAS that those in government MAY find distastful but CANNOT be allowed to quash by destroying the presses (LIKE AS HAPPENED in the time period)

 

You CANNOT have a free people without an armed Militia holding arms OWNED by themselves. That's the Militia. It's in the writings of the period. The founding fathers SAY so, many times.

 

Let me quote Tucker AGAIN.

 

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

 

The freedom in the 1st is to speak, understood as expression both verbally and in writing. It refers to the action of expression, not the implement. The impliment is not specified. The 'press', a term still relevent today, refers to an organized body of 'speakers'. While yes the press was a method, in this usage it is refering to the users.

Guess what the government can't do? It can't restrict the ownership of printing presses and other devices for promulgating those ideas to many people.

 

Do you think a law banning books and magazines but not news papers would pass muster?

 

Do you think a law banning ALL electronic communications except those promulgated by Official News organizations would pass muster?

 

 

The freedom in the 2nd is 'keeping' and 'bearing'. Both are meaningless without the implement specified. Also the use of the term 'bearing' has a specific meaning. It is only relevant in terms of an organized body,one that is specified in the amendment. From a linguistic standpoint the 1st and 2nd cannot be more clear in how they define their intent.

Freedom of the press is meaningless without the implement.

[rmgill]

Quoting Story from Andrews v. State (1871)

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Last Dingo, if anything the way forwards to adhere to YOUR inverted view of the 2nd would mean that I should be able to go out and get an M240 tomorrow without government restrictions and show up for drill with that and my Ferret Armored Car with the government providing the ammo for the monthly drill. Other citizens would be able to obtain similar arms for their class of use be it infantry arms or mounted arms as they so choose.

[seahawk]

 

It is quite clear that assault rifles are protected by the 2nd amendment then.

That is a valid interpretation of the 2nd. The question is whether it is relevant today in reference to the original intent.

 

 

Well, if you link the type of weapon to the suitability for militia use, it surely is. In another from we had a similar discussion and people who argued that way for stricter gun control, did not get that if you argue that way, you can ban hunting rifles but not machine guns.

Edited October 28, 2017 by seahawk

[rmgill]

At this point I'll just copy and paste from GunCite. This is a long list of citations by various luminaries of the time of the writing of the US Constitution or just afterwards. Trying to point to VOX or Slate or cases descending from that execrable case, Cruikshank and the poorly justified and legally tenuous reconstruction/Jim Crow Era is fraught with idiocy.

 

Don't argue with me. Argue with Madison, Tucker, Story, and Hamilton. You might also read Ehgene Volokh's writings on the subject, if not Clayton Cramer's.

 

 

 

 

Original Intent and Purpose of the Second Amendment

Introduction

The Second Amendment:

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.

The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated one, was not intended to serve as a prerequisite for exercising the right to keep arms.

 

The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members.

Evidence of an Individual Right

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker (see also), a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge (appointed by James Madison in 1813), wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

In the [/size]appendix to the Commentaries, Tucker elaborates further:[/size]

This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Not only are Tucker's remarks solid evidence that the militia clause was not intended to restrict the right to keep arms to active militia members, but he speaks of a broad right – Tucker specifically mentions self-defense. [/size]

"Because '[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition,' the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major cases of virtually every Supreme Court era." (Source: The Second Amendment in the Nineteenth Century)

(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)

Another jurist contemporaneous to the Founders, William Rawle, authored "A View of the Constitution of the United States of America" (1829). His work was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

This is another quote where it is obvious that "the people" refers to individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens. This passage also makes it clear ("the prohibition is general") that the militia clause was not intended to restrict the scope of the right.[/size]

(In 1791 William Rawle was appointed United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years.)

Yet another jurist, Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (source):

The next amendment is: "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."

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

 

As the Tennessee Supreme Court in [/size]Andrews v. State (1871) explains, this "passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."[/size]

Story adds:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Story laments the people's lack of enthusiasm for maintaining a well-regulated militia. However, some anti-gun rights advocates misinterpret this entire passage as being "consistent with the theory that the Second Amendment guarantees a right of the people to be armed only when in service of an organized militia." (See [/size]Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.)[/size]

The need for a well-regulated militia and an armed citizenry are not mutually exclusive, nor was the right to have arms considered dependent on membership in an active militia (more on that later). Rather, as illustrated by Tucker, Rawle, and Story, the militia clause and the right to arms were intended to be complementary.

More Evidence Supporting an Individual Right

After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

"A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear 'their private arms.' The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. [/size]"The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as [/size]26 Val. U. L.Rev. 131-207, 1991). [/size]

Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.

The Federalist Papers

Alexander Hamilton in Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:

What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

James Madison in Federalist No. 46 wrote:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Here, like Story, Madison is expressing the idea that additional advantages accrue to the people when the citizens' right to arms is enhanced by having an organized and properly directed militia.

The Federalist Papers Continued – "The Original Right of Self-Defense"

The Founders realized insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.

"The original right of self-defense" is not a modern-day concoction. We now examine Hamilton's Federalist No. 28. Hamilton begins:

That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.

Hamilton explains that the national government may occasionally need to quell insurrections and it is certainly justified in doing so.[/size]

Hamilton continues:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms and adds:[/size]

[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

Thus the militia is the ultimate check against a state or the national government. That is why the founders guaranteed the right to the people as opposed to only active militia members or a state's militia. But of course, via the militia clause, the Second Amendment acknowledges, as well, the right of a state to maintain a militia. (For more on militia see: http://guncite.com/gc2ndmea.html.)

Hamilton concludes, telling us the above scenario is extremely unlikely to occur:

 

When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.

Again, it is the recurring theme of the people's right to keep and bear arms as individuals, enhanced by a militia system, that (in part) provides for the "security of a free state."

Connecting the Dots...

 

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. . . . "

--- The U.S. Supreme Court in Cohens v. Virginia (1821)

Although the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution was sent to the states for ratification), the passages quoted, above, help explain the relationships that were understood between a well-regulated militia, the people, their governments, and the right to keep and bear arms. The Second Amendment did not declare or establish any new rights or novel principles.

The Purpose of the Militia Clause

 

"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))

For more information about justification clauses see: Volokh, Eugene, The Commonplace Second Amendment, (73 NYU L. Rev. 793 (1998)). (See also, Kopel, David, Words of Freedom, National Review Online, May 16, 2001.)

Parting Shots

There are 3 ways the Second Amendment is usually interpreted to deny it was intended to protect an individual right to keep and bear arms:

• It protects a state's right to keep and bear arms.
• The right is individual, but limited to active militia members because the militia clause narrows the right's scope.
• The term "people" refers to the people collectively, rather than the people as individuals.

Yet, three jurists, who were contemporaries of the Founders, and wrote constitutional commentaries, read the Second Amendment as protecting a private, individual right to keep arms. There is no contrary evidence from that period (see Guncite's Is there contrary evidence? and Second Amendment challenge).

Instead of the "right of the people," the Amendment's drafters could have referred to the militia or active militia members, as they did in the Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)

It strains credulity to believe the aforementioned three jurists misconstrued the meaning of the Second Amendment.

The only model that comports with all of the evidence from the Founding period is the one interpreting the Second Amendment as protecting an individual right for a collective purpose. The militia clause and the right to keep and bear arms were intended to be complementary.

Perversely, gun rights defenders are accused of creating a Second Amendment myth, when it is some present-day jurists and historians who have failed to give a full account of the historical record.

(The assertion that the Second Amendment was intended to protect an individual right should not be confused with the claim that all gun control is un-constitutional. However, to read why many gun rights advocates oppose most gun controls, today, please see GunCite's, Misrepresenting the Gun Control Debate.)

Edited October 28, 2017 by rmgill

[Paul G.]

I completely agree with all that. The problem is are kneejerking instead of thinking."The Second Amendment preserves and guarantees an individual right for a collective purpose." I am not arguing against Madison and Hamilton. I am arguing that original collective purpose is obsolete.

Edited October 28, 2017 by Paul G.

[rmgill]

Given how the government thinks paroling violent felons who have multiple parole violations is a good idea AND we are importing terrorists because to not do so is mean and hurts their feelings AND we have parts of the country where criminals hold defacto sway, AND we have local governments letting rioters 'run free to destroy', I would argue that the collective purpose is far from obsolete.

Edited October 28, 2017 by rmgill

[Mr King]

Given how the government things paroling guys who have multiple parole violations is a good idea, we are importing terrorists because to not do so is mean and hurts their feelings AND we have parts of the country where criminals hold defacto sway, AND we have local governments letting rioters 'run free to destroy', I would argue that the collective purpose is far from obsolete.

 

 

And innocents left to defend life and property from violent mobs because it suits the political ambitions of the corrupt politicians How many lynchings were there in the LA race riot?

 

 

[lastdingo]

Because the founding fathers didn't think one had to spell it out to the N'th detail for government functionaries who can't put tab A into Slot B without out a step by step set of instructions with pictures and a trainer to shoe them 10 Times before they can pass the qualification.

The Bill of Rights wasn't written by "the Founding Fathers. Few of them were involved, most people involved were not Founding Fathers.

 

--------------------

 

Shall we go back to topic or shall we bombard each other with gun rights links? There's no real doubt that there are we wouldn't run out of munitions on this in a hundred pages, right?

 

 

 

So let's discuss why it's usually the Republicans who are associated with treasonous activity like Reagan lengthening the Tehran hostage situation, Reagan having the Iran-Contra affair, Trump probably being a Russian asset together with much of his staff...

[JWB]

 

 

Reagan lengthening the Tehran hostage situation.......Trump probably being a Russian asset together with much of his staff...

[rmgill]

The Bill of Rights wasn't written by "the Founding Fathers. Few of them were involved, most people involved were not Founding Fathers.

Uhh. Ok, Then. Did you get that out of another Slate article? Or perhaps a DDR pamphlet on the foundation of the United States?

 

Who do you think James Madison was if not a founding father. What of George Mason? One of the drafters of the proposals that lead to the Bill of Rights and one of the Authors of the Virginia Declaration of Rights?

 

 

Shall we go back to topic or shall we bombard each other with gun rights links? There's no real doubt that there are we wouldn't run out of munitions on this in a hundred pages, right?

 

Quotes from The Blackstone Commentaries are ammo, 155mm shells. Quotes from some bint from Slate are squibs, .22 squibs. Come back when you've got some thing grounded in reality.

 

 

So let's discuss why it's usually the Republicans who are associated with treasonous activity like Reagan lengthening the Tehran hostage situation, Reagan having the Iran-Contra affair,

 

Trump probably being a Russian asset together with much of his staff...

 

Put down the conre drugs sport.

Edited October 29, 2017 by rmgill

[lastdingo]

rmgill, learn to read. It's obvious that you cannot reliably comprehend English texts.
You quote a line and then you write two lines below it that utterly prove this point.

 

The Bill of Rights wasn't written by "the Founding Fathers. Few of them were involved, most people involved were not Founding Fathers.

Uhh. Ok, Then. Did you get that out of another Slate article? Or perhaps a DDR pamphlet on the foundation of the United States?

Who do you think James Madison was if not a founding father. What of George Mason? One of the drafters of the proposals that lead to the Bill of Rights and one of the Authors of the Virginia Declaration of Rights?

 

Edited October 29, 2017 by lastdingo

[Paul G.]

 

 

Given how the government things paroling guys who have multiple parole violations is a good idea, we are importing terrorists because to not do so is mean and hurts their feelings AND we have parts of the country where criminals hold defacto sway, AND we have local governments letting rioters 'run free to destroy', I would argue that the collective purpose is far from obsolete.

 

And innocents left to defend life and property from violent mobs because it suits the political ambitions of the corrupt politicians How many lynchings were there in the LA race riot?

 

 

The militia was never about law encorcement. It was about threats to national security. King Phillip's War was seared in the FF's memory. The 2nd was never really about an armed uprising against the gonernment. The use of the Militia to suppress Shay's rebellion in 1787 and the Whiskey rebellion of 1791 pretty much proves that is a myth.

[toysoldier]

Yeah, only the Guvmint can say what´s a good or bad militia, and the militia can only be used as mandated by the reigning Guvmint. Keep it classy, Paul.