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« Interesting district court case on commerce | Main | Hurricane disaster and self-defense »

Thoughts on the wording of the Second Amendment

Posted by David Hardy · 1 September 2005 08:38 AM

The immediate ancestor of the Second Amendment is the Virginia ratifying convention's demand for a bill of rights, which asked for a guarantee that:

"That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State."

The ancestors of that were in turn three State guarantees. First, Virginia's 1776 Declaration of Rights, which praised the militia but had no right to arms proviso:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state..."

And Pennsylvania's 1776 Declaration, which had a right to arms but no militia clause:

"That the people have a right to bear arms for the defence of themselves and the state..."

And finally Massachuetts' 1780 Declaration (which added "keep" and "for the common defense"):

:The people have a right to keep and to bear arms for the common defence."

Thought: when the Framers (to be precise, the Virginia ratifying convention) worked from the existing State models, they chose the broadest wording of each. From PA came the right to bear arms. From MA came the right to keep (but with the addition of "for the common defense" trimmed out). From VA came the militia clause (which neither PA nor MA had). In each case, the broadest wording available was chosen.

· Second Amendment wording

Comments

“First, Virginia's 1776 Declaration of Rights, which praised the militia but had no right to arms proviso:”

Virginia’s Declaration of Rights did contain an implied right to keep and bear arms for without it there could be no well regulated militia, composed of the body of the people, trained to arms, as Virginians understood those terms in 1776.

The various militia acts required men to all times be armed "That no man go or send abroad without a sufficient partie well armed."; "That men go not to worke in the ground without their arms.- March 1623-4 --21st James 1st". At the Ratifying convention the following was noted in support of the Common Law right to self defense which the Colony of Virginia was under and which the Commonwealth of Virginia adopted.

“If the clause stands as it is now, it will take from the state legislatures what divine providence has given to every individual—the means of self defence." – George Mason, Virginia Ratifying Debates on the Federal Constitution, June 14, 1788

"The honorable gentleman said that the militia should be called forth to quell riots. Have we not seen this business go on very well to-day without military force? It is a long-established principle of the common law of England, that civil force is sufficient to quell riots. To what length may it not be carried? A law may be made that, if twelve men assemble, if they do not disperse, they may be fired upon. I think it is so in England. Does not this part of the paper bear a strong aspect? The honorable gentleman, from his knowledge, was called upon to show the instances, and he told us the militia may be called out to quell riots. They may make the militia travel, and act under a colonel, or perhaps under a constable. Who are to determine whether it be a riot or not? Those who are to execute the laws of the Union? If they have power to execute their laws in this manner, in what situation are we placed! Your men who go to Congress are not restrained by a bill of rights. They are not restrained from inflicting unusual and severe punishments, though the bill of rights of Virginia forbids it. What will be the consequence? They may inflict the most cruel and ignominious punishments on the militia, and they will tell you that it is necessary for their discipline." - Patrick Henry, Virginia Ratifying Debates on the Federal Constitution, June 16, 1788


Before Virginia amended its Constitution in 1971 to add the words, "The right of the people to keep and bear arms shall not be infringed", the following resolution was issued in 1964 and expressed the understanding of the Virginia Constitution at the time. “Whereas, the right of the citizen is entwined in the very roots of the founding of this Commonwealth when it was not only the individual's right to bear arms but his duty to bear arms in the defense of his community – House Joint Resolution No. 21, (1964)“


Posted by: Rudy DiGiacinto at September 3, 2005 09:44 PM

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