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A complete understanding of the Second Amendment
Conventional approaches to the Amendment amount to: (1) cite a Framer who referred either to the militia as a State-run institution, or a Framer who referred to an individual right, and (2) argue that proves the Amendment was meant to protect only a State institution or an individual right. Oh, and (3) explain how the Framers who fall into the other class were really just sloppy with their wording. They said militia, but meant individual right, or said individual right, but were really thinking of militia duty.
But what warrant do we have for assuming that the framers -- an intellectual elite, of a period distinguished by its clear thinking and precise writing -- were just being sloppy? Or that Jefferson, who thought we should have revolutions every 25 years or so just to keep in form, and John Adams, who feared popular revolt almost as much as he feared tyranny, had exactly the same views on this matter?
What if we were to approach the Amendment in a scientific manner, assuming that when two men said different things they may have meant different things, and that our duty is to explain ALL the history as best we can?
This is a theme I began in my article "The Second Amendment and the Historiography of the Bill of Rights" (linked in the sidebar). Let me summarize it ...
At the time of the framing, there were two predominant American political philosophies.
(1) Classical Republicanism, which traced back to Harrington and thence to Machiavelli. This did not emphasize rights as such (a properly created republic would protect personal rights anyway, and a defective one would be not stopped by mere "parchment barriers" of written declarations). Its core was a triple relationship between property, political power, and force. Force took the form of the militia, composed of landowners, who alone could vote. The militia could be as powerful as anyone wanted, yet pose no danger. It couldn't revolt to seize power: as voters, they already had the power. Nor to seize property: as landowners, they already had the property. (Thus the concept resolved Machiavelli's dilemma, that a hired army must either be too weak for defend you or strong enough to take over, for "there is no reason why an armed man should obey an unarmed one"). To this point of view the militia, as an institution, is essential. (I say as an institution: note that the amendment refers to a 'well-regulated miltia"--at the time well-regulated meant well trained, well organized. It's not enough that every citizen be armed, they must also be disciplined and trained. The Classical Republicans also believed that universal military training would promote unity, patriotism, and political responsibility).
(2) What I call proto-Jeffersonianism. This was an outgrowth of the first. It emphasized individual rights (even as against a properly organized government). Also, it went beyond Classical Republicanism in wanting to give voting rights to non-landowners, in what is today termed universal manhood sufferage (women came in later, of course, although Richard Henry Lee, the eccentric Virginia Classical Republican, was in favor of giving landowning women the vote back in the 18th century).
So what if we had two different political groups wanted two different approaches to citizens and arms?
Look at the history. George Mason (a thoroughgoing Classical Republican) and Thomas Jefferson (a, well, Jeffersonian) in 1776 both proposed a Declaration of Rights for Virginia.
Mason's draft, which was adopted, had the provision: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state..." No mention of an individual right. (In fact, militia service was not a right at all, it was a duty). BTW, voting was restricted to landowners and running for office restricted to major landowners.
Jefferson's draft provided: "No freeman shall be debarred the use of arms." No mention of the militia. And he would have given the vote to all taxpayers and militia members (he explained that those who paid to support the state or were ready to fight to defend it had a sufficient tie to warrant voting privileges, whether they owned land or not).
Shortly thereafter, Pennsylvania adopted its own first constitution and bill of rights. This had an interesting political history. Patriot forces had to deal with two antiwar blocs -- the major merchants, who wanted British trade, and the Quakers, who were as always adverse to war. By a variety of clever political tactics, they neutralized both. The resulting convention was dominated by proto-Jeffersonians. They adopted a declaration of rights which was almost entirely taken from that of Virginia ... with one major exception. Out went the statement about the militia. In its place went a clearly individual right: "the people have a right to bear arms for the defence of themselves and the state...." With it went near-universal manhood sufferage -- all militia members and taxpayers got the vote.
The two approaches (either praise the militia, or protect an individual right, but don't do both) stayed separate for years and, as I develop in the article, tracked provisions for voting. States and ratifying conventions that gave universal manhood sufferage or were dominated by proto-jeffersonians did the one, those that gave only property owners the vote did the other. Until the Virginia (federal) ratifying convention of 1788, where the two were both recognized. Why not? They were hardly inconsistent. Protect individual arms AND call for a militia, thus pleasing both political groups.
This approach has the advantage of explaining all of the Framers' statements, rather than just those that support one's own view, and of taking them all at face value, rather than assuming that many Framers became strangely inarticulate when arms and militia were involved.
To phrase the point otherwise: proof that certain Framers thought X was the reason for an amendment does not prove that Y was not also a reason, unless we make the assumption that an amendment can have but one purpose -- which is obviously not the case, just look at the first, fifth, and sixth amendments. Thus proof that George Mason referred to the militia as important does not disprove that the amendment was also directed at protecting individual rights to arms. In fact -- when the first House rather dramatically edited down Madison's draft, some of the first things to go were his prefaces explaining why this or that right must be protected. The fact that the second amendment's militia provision survived this editing suggests that it had importance beyond that of an explanatory preamble. It, and the right to arms, both survived because each had importance independent of the other.
UPDATE in light of jvm's comment:
1. The evidence suggests that the second amendment embodies two independent constitutional provisions. I would not use the term "rights" since militia duty was a duty rather than a right. In the early States, court-martials for failure to comply with militia statutes were commonplace. Until the first draft was instituted in 1863, militia duty was the sole avenue for the government to compel military service, so speaking of militia as a right is close to speaking of a right to be drafted.
The wording of the second amendment is interesting in that the militia portion does not really order the government to do anything or forbid it to do anything. It makes a statement of fact. I think this has two reasons. (1) to Classical Republicans, declarations of rights were "declarations." If the government was not properly arranged, they would be disregarded anyway. (2) It'd have been pretty hard to define, with precision, just what they wanted with regard to the militia. The task might approach writing the Uniform Code of Military Justice into a constitution. After all, the idea was not to stop the government from acting but rather to induce it to pass legislation that would achieve an end.
BTW, there are two versions of the Amendment, one with one comma, and one with 2 or 3. No way to determine which is more official, since documents were hand-copied then, the scribes sometimes punctuated as they pleased, and most of the real originals were lost when the Capitol was burned during the War of 1812.
2. With regard regulation, I hope to bring on some guest bloggers who have published on that issue. It is safe to say that no right is without limits. Freedom of speech ends when a person sends a blackmail note (a proposal to use freedom of expression unless paid to keep silent), or demonstrators expect to occupy and block a street, or use bullhorns in the middle of the night, etc. (the "reasonable time and place" restrictions). At the same time, the recognition that rights have outer limits does not render them meaningless on a theory that "any restriction that I can categorize as 'somewhat reasonable' will fly." When I was at Interior Dept, they spent two weeks in court hashing out the "time and place" restrictions for the regulations on picketing on the White House sidewalk.
My own thoughts on this were that an analogy can be drawn to caselaw on the electronic media, a new technology with problems the Framers could not have foreseen. A high speed printing press is as protected as a Ben Franklin model; a requirement that the government authorize either press would be patently unconstitutional. On the other hand, if everyone could set up a 100 megawatt radio station in their backyard and choose the frequency, there would be a few problems, so the FCC is allowed to regulate that (but not in a way that would frustrate the core of the First Amendment -- no discrimination between messages allowed).
Akhil Amar and Sanford Levinson have floated a different approach. The purpose of the 2nd Amendment was primarily to allow the people as a mass to deter or resist tyranny, and the purpose of the 14th was to allow them to resist criminal attack. Ergo a weapon not useful to resisting criminal attack, nor to allowing the people en masse to resist -- a weapon in short that would allow one man or a few to become tyrants via terrorism -- can be restricted.
In any event, recognition of the right as a right is the beginning of the process of determining just how far it extends. In the case of the First Amendment, that only took the better part of a century (grin).
20 Comments | Leave a comment
Good work on your article. I want to clarify though; are you saying that the phrasing "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." is one right being protected, or two seperate rights? It is unfortunately phrased with commas in a manner that we would not use today.
I am very much anti-gun (living in a large city) and feel that if the phrasing was meant as one right, then we should discuss the possibility that the "proto-Jeffersonians" as you call them, became convinced that only a well regulated militia would be safe to protect as a right. If however it is meant as two seperate rights, I would argue that significant regulation is entirely logical, since the word "arms" can mean any weapon used in warfare - weapons which the framers could never have imagined in their wildest dreams. If Jefferson had known of M.A.D. he might have had a very different opinion. Even pistols as they exist today are extraordinarily powerful devices compared to the muskets of the late nineteenth century. As controversial as it sounds, the possibility of an ammendment should be discussed freely and openly since this is an issue that refuses to go away.
An excellent analysis, David. I do have one minor thought to contribute.
There's a strong presumption by many (particularly most politicians) that the existence of a problem or potential problem automatically justifies some regulation, subsidization or other intervention by the government. The FCC, which you mention as addressing a real problem, is a classic instance.
As long as one insists that the airwaves are public property there will be problems, such as the one to which you allude, that seem to require regulation by the government. However, if the airwaves were treated in a manner analogous to land, the problem would be easily solved without FCC regulation. Where (or when) there is no broadcast on a particular frequency, anyone might simply purchase it from the government. One might also be able to stake a claim to it and, after broadcasting in a appropriate manner for a fixed and reasonable period of time, gain legal title to it, as was done under the Homestead Act. Thereafter no FCC involvement would be required since problems of the sort cited could easily be solved by civil and or criminal actions for trespass.
I am not a lawyer. I was brought up when civics and American government was part of core curriculum in grade school rather than a one-semester course for college-bound high school seniors.
We were taught that the Bill of Rights had an unwritten corollary, the Bill of Duties, Obligations, and Responsibilities. To give an example, "free speech" does not give one the right to shout "fire" in a crowded theatre. Regarding the Second Amendment, it carries an obligation to use a higher degree of care, a responsibility of proficiency, and a duty to assist a sheriff or other PUBLIC OFFICIAL empowered to call up a posse.
"Well-regulated" has nothing to do with bureaucratic regulations or gun control laws. It, in today's language, means "well-trained," "proficient," "disciplined." This is one of the reasons I have been advocating "Universal Gun Proficiency Education" in our public schools, in conjunction with reenstatement of civics as core curriculum.
"Militia" has nothing to do with the National Guard or Enlisted Reserve. Both are equipped by the national government. While the National Guard is nominally under state control, Governor Schwarzenegger cannot send National Guard units to Afghanistan. President Bush CAN. Their armaments are kept in National Guard armories, they have access to automatic weapons, crew-served weapons, combat aircraft, combat vehicles, Etc. They are properly adjuncts of the standing army.
The militia (sometimes called "Constitutional militia") is the armed body of the people. When called, they are expected to show up with their own personal armament, and when activated as militia, are under the discipline and control of local officials.
"Right" is by definition an individual attribute. So-called "collective rights" are called "powers." The word is used elsewhere in the Bill of Rights.
"People" refers to individuals (also "persons" or "accused"), and means the same here as in the First, Fourth, Fifth, Sixth, Nineth, and Tenth Amendments. There is nothing to suggest that "people" here means a government-run collective organization, such as the National Guard, and individuals elsewhere in the Bill of Rights. In fact, the National Guard did not exist for over a hundred years after the adoption of the Constitution and the Bill of Rights.
"Keep and bear arms" naturally refers to personal armament such as pistols, rifles, shotguns, knives, and other armament of a personal nature.
"Shall not be infringed." What part of this is it that our would-be keepers like Schumer, Feinstein, the Clintons, and Kerry don't understand?
We were taught that it was the responsibility of local government to "regulate" (drill, train) the local militia at the municipal rifle range. This was largely ignored because enough people were going shooting on their own at that time. The problem I saw as a kid was that in the event that a posse needed to be called up, there was no established discipline or chain of command.
I once calculated that if, at current population levels, we were under threat of immediate invasion, we, in a matter of hours, could field the equivalent of five thousand infantry divisions. This would give even Red China, which once boasted an army of one hundred million, some serious second thoughts about attempting such a move.
There is no evidence that the following contingency plan ever existed, but this was something an anti-gun politician dreamed up on the spur of the moment. If memory serves me correctly, I believe it was Neal Knox that was involved in this. He was discussing the latest gun control measure with an anti-gun politician during the Watergate era. This guy commented that Knox was worried about protecting the rights of armed citizens when Nixon was about to seize control of the Army and declare himself dictator. Mr. Knox responded that the Second Amendment and the armed citizens was the guarantee that he won't!
In any event, except for the last two paragraphs detailing more recent events, this was the way it was when I was a kid in grade school. Perhaps this is the way it ought to be NOW.
Joseph,
You wrote this:
I am very much anti-gun (living in a large city)as if the parenthetical part were explanatory, or perhaps even self-evident. But unless the Mayor or Chief of Police lives in your same condo building, I can't see how it follows. Ordinary citizens in big cities are offered no more round-the-clock police protection than are their rural cousins.
As for the idea that only infantry or individual weapons are covered by the 2ed. Please look at the power of the government to grant Letters of Marque and Reprisal(sic). The very idea of the letters presupposes that PRIVATE warships EXIST. These are the only ships that could be given these letters. A government ship has no need of the letters. This I believe shows that any weapons that are USEFULL in fighting the government are protected by the 2ed. NBC weapons ARE NOT Protected because they have NO USE in a rebellion.
I have not seen Letters of Marque brought up in these discussions. I wonder why? It seems clear that they have bearing.
Thank you.
My personal interpretation -
When I read this:
"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."
Here is how my brain breaks it down:
* "A well regulated Militia, being necessary to the security of a free State, shall not be infringed."
* "The right of the people to keep and bear Arms, shall not be infringed."
Any other reading appears - to me - inaccurate.
Doesn't the same pattern of breivity appear in other Constitutional writings?
(Additional thought: Dan's comment about Letters of Marque made me go "Wow. Great point.")
Dan's comment regarding Letters of Marque is besides the point. The fact that something exists is not proof that it is protected from infringement. The common law definition of "arms" as deliniated by Sir Edward Coke's Commentaries on Littleton limits the terminology to individual weaponry carried upon the person.
Sir Edward Coke's Commentaries on Littleton!!!
You have got to be kidding. He was writting in the early 1600's in England commenting on Littleton limits from EVEN EARILER. Arms as only individual arms? OF COURSE, WHAT ELSE WAS THERE!! Anyone who could AFFORD a cannon could of course have one because NOBODY OUTSIDE THE HIGHER NOBILITY COULD AFFORD THEM. Nobody at that time would have imagined that the common man could afford cannon or any other crew served weapons!!!!
GET REAL.
The Founding Fathers KNEW that arms meant cannon and such. Private cannon were all over the place.
They said ARMS. Not FIREARMS. Not Individual ARMS. Just ARMS. These men had been through a war. They knew that arms means more than just a rifle.
The Letters of Marque shows INTENT. They intended that Private Warships (individually owned) exist. The 2ed protects ARMS. If you can't ARM your ship then you can't have a Private Warship. IT CAN'T EXIST. Therefore you must be able under the law to have a Private Warship. If you can't then your right to ARMS HAS BEEN INFRINGED.
What is the MAIN PURPOSE of the 2ed. To enable the People to rebell and overthrow bad government. The SECOND purpose is defense of country. Therefore the 2ed protects weapons that serve the Main Purpose. The FF's knew that that meant more than a rifle!!!.
They weren't thinking about what was written almost 200 years before about something even older. They were thinking about the revolution that they had just been through!!
Dan writes: "Sir Edward Coke's Commentaries on Littleton!!! You have got to be kidding. He was writting in the early 1600's."
Me: Actually, Coke's treatise is more correctly attributed to the mid 1600's. The point is not when it was written however, the issue is upon the understanding of that term at common law during the colonial period and upon the derivation of the terminology in the 2nd Amendment. Coke's definition was cited in early case law of the United States and survives to this day as the definition found in current editions of Blacks Law Dictionary. More importantly, the derivation of the terminology "arms" in the 2nd Amendment can be directly traced to the English Bill of Rights, circa 1689 and roughly contemporaneous to Coke's treatise. Unless you can come up with a more recent legal definition contemporaneous with the 2nd Amendment, I am afraid you will fail to convince me otherwise. Hint: You will not find a more contemporaneous definition if you look to Blackstone.... Blackstone is merely a rewrite of Coke in this area of the law.
Dan writes: "The Letters of Marque shows INTENT."
Me: No, it merely shows reality. That there were privately owned ships that could be converted for war purposes. It is a pragmatic stance taken by the colonialists, but has no relevancy on the meaning of the terminology "arms". An extremely flippant example of your rationale would be to state that rum existed during the colonial period and the British Navy supplied a ration of rum to its sailors, therefore rum is an arm protected by the 2nd Amendment...
Dan writes: "They said ARMS. Not FIREARMS."
Me: I never claimed otherwise. The 2nd protects all individual weapons commonly carried upon the person to strike out or defend against another person. Knives, swords, pikes, bayonets, and the like would be included as well as firearms.
Dan writes: "What is the MAIN PURPOSE of the 2ed. To enable the People to rebell and overthrow bad government."
Me: Ahhhh... the insurrectionist view of the 2nd Amendment. Let me suggest a modification of that view which I believe would be supported by a majority of the framers of our constitution... The framers did not merely fear an oppressive government, they also feared mob rule. The examples of the French Revolution, Shea's Rebellion and the like dictates against a majority of the founders supporting a view of a purely popular uprising. In lieu thereof, the framers relied upon a system of checks and balances to prevent tyranny. So how does this apply to the 2nd? The constitution provides for state militias.... and it also provides that the federal government shall guarantee unto each state "a republican form of government". Thus, it could be argued that the federal government through the army and the cooperation of militias from other states acts as a detterant to an individual state heading toward tyranny, while a confederation of state militias acts as a detterant to federal tyranny. Is this view without historical substance? Take a look a Federalist No. 28 (Hamilton): "But in a confederacy the 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."
Federalist 46 (Madison): "But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other."
Now consider the comment of John Adams: "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
Now consider the American Revolution itself. It was not a "mob uprising" but a coordinated effort of state governments binding together under the Continental Congress and employing the various state militias while, at the same time, raising and arming a Continental army. The roots of the organizations reflect directly and specifically towards a "state sponsored" rebellion against the central authority of the crown... not a popular uprising in the sense of the French Revolution.
I fully agree with Mr. Hardy that the Founders did not march to a common drummer, that they had different ideas and different goals and that some of them in fact would have supported a "pure insurrectionist" view of the 2nd. However, I also believe that a clear majority supported this "modified insurrectionist" view which I now present for your perusal.
1. There are no longer any armed State Militas. They are gone. So your argument about the States checking the Federal government no longer applies. NO, the National Guard is NOT a State Milita. They are owned lock, stock, and barrel by the Federal Government. And the Feds have been careful to make sure that NO State has a COMPLETE force in its National Guard. That to prevent just what you are talking about. That idea is dead.
2. The Revolutionary War was not started by the States. It was started by individuals who wanted to stop the Redcoats from taking their guns. Only after the fighting started did the People in the State assemblies agree to join the revolt. The State governments were BRITISH until they voted to join the revolt.
3. "more recent legal definition contemporaneous with the 2nd Amendment"
I will admit that there is not another LEGAL definition. But the courts have stayed away from this like it was poison. The Courts don't like to think that there is anything that trumps them and the 2ed was DESIGNED to trump the Government or the Courts if they went bad. So the Courts (especially the Supreme Court) avoid the subject. If they didn't they would have to make rulings that the People might be angry enough to revolt over if the Congress didn't slap the Courts down. They DON'T want that, so they avoid it.
This hasn't been TOUCHED since the mid 1600's. You say it is because everyone agrees with it. I say it is because the Courts don't want to touch it and hope it will just go away.
4. What do you think individual arms covers today?
It should cover any man portable arm that one person can use. That covers an awfull lot.
What you are already saying makes the NFA of 1934 , the 1984 ban on the sale of new machine guns, and most gun control laws all unconstitutional.
5. The Founding Fathers, the ones that wanted the 2ed, KNEW that all government go BAD. They always had and they always would. They placed the FINAL say with the People. The "modified insurrectionist" view is a non-started. They may have believed that would happen FIRST before the PEOPLE had to revolt but the States no longer have the POWER to revolt. The "modified insurrectionist" view HAS FAILED and been proven wrong. Only the "pure insurrectionist" view is still possible.
So are you going to continue to support a failed view or are you going to agree that the "pure insurrectionist"'s were right and adopt their view.
6. Last without the NFA of 1934, a tax on a right, already unconstitutional. You can't tax a right such as the right to vote. If the courts would ALLOW anyone to have STANDING they would have to rule it unconstitutional.
Why am I talking about this???
Before the 34NFA there were NO LIMITS on the arms that an individual could own. EVERYONE agreed with my view.
Even today pay the TAX own whatever you want. Tanks, Jets, 8in naval guns, mini-guns, chain guns, LAWS, Anti-tank weapons, Mortars, ANYTHING!!
I wonder WHY it's only since 1934 that anyone restricted ARMS?
I think it could be that the FF's were right! Over time ALL government go bad. Ours isn't anywhere close to requiring a revolt and hopefully it never will be. But it will not be because the States stopped the Federal Government. It will be because of the "pure insurrectionist" 2ed.
Dan: "There are no longer any armed State Militas."
I disagree. Even if you discount the National Guard, many states have State Guards which are outside of the National Guard and meet the classic definition of a Militia.
Dan: NO, the National Guard is NOT a State Milita.
You realize, of course, that the US Supreme Court disagrees with you?
Dan: And the Feds have been careful to make sure that NO State has a COMPLETE force in its National Guard. That to prevent just what you are talking about. That idea is dead.
And that is exactly what the 2nd is all about. The antifederalists feared that the feds would play hanky panky with the state militia by virtue of its power over the state militia in Article I, sec. 8, paragraphs 15-16. To prevent this, an individual right to keep and bear arms was guaranteed as against federal infringement. This provides a SOURCE of militia weapons... those in the hands of private individuals. That is the fallacy of the collective rights approach. The 2nd does not protect the militia.... it protects the ability of the states to raise and arm a militia and it does this by protecting an alternate source for those weapons unrelated to federal largese...
Dan: That idea is dead.
Nope, a viable force is within a breath of organization to resist tyranny so long as the 2nd is honored.
Dan: The Revolutionary War was not started by the States. It was started by individuals who wanted to stop the Redcoats from taking their guns.
Disagree. The revolutionary War was started by the State Militia which wanted to prevent the Redcoats from confiscating their armory.
Dan: I will admit that there is not another LEGAL definition.
Then we will just need to agree to disagree about its application.
>What do you think individual arms covers today?
Any weapon that a person customarily carries upon
himself to strike out or defend against another person. In addition to firearms, this would include knives, bayonets, body armor and the like. It would not include weapons designed to attack groups or areas since the definition pertains to one on one combat situations (strike out or defend against another person). Jokingly, I refer to this restriction as "anything that goes bang is ok, but things that go boom are not ok." Coke never would have said that, but I think it is usefull. Therefore hand grenades, and hand held missle systems would not be covered.
Dan: The Founding Fathers, the ones that wanted the 2ed
Funny, the person who DRAFTED the 2nd was Madison, and I quoted him in support of the modified insurrectionist view...
Dan: The "modified insurrectionist" view HAS FAILED and been proven wrong.
Disagree, but even if true, it does not change what the founders intended... which in my opinion is the modified insurrectionist view.
Dan: Last without the NFA of 1934, a tax on a right, already unconstitutional. You can't tax a right such as the right to vote.
Nope. In fact poll taxes were quite legal up until the passage of the 24th Amendment. You do not think that the New York Times pays taxes? You do not think books are subject to sales tax? The issue from a constitutional stand point would be if the right is singled out for taxation with a view towards preventing its exercise.
Dan: Before the 34NFA there were NO LIMITS on the arms that an individual could own. EVERYONE agreed with my view.
Incorrect. AYMETTE V. STATE, 2 HUMPHREYS (TENN.) 154. I can cite other cases and laws if you wish.... all predating the NFA of 1934 (no federal law of course, merely state restrictions).
Dan: I think it could be that the FF's were right!
So do I. We merely disagree on what the prevailing opinion of the FF's was and what they were right about.
Dan: But it will not be because the States stopped the Federal Government. It will be because of the "pure insurrectionist" 2ed.
It will be prevented by virtue of the the very checks and balances put into place. Has there been a revolt in the US? Of course-- there was that nasty little thing in the early 1860's... How was that revolt organized and prosecuted? Classic justification of the modified insurrectionist view. It almost succeeded in the face of a majority of the states in opposistion to the revolt and firm federal opposistion to the revolt.
Thank You, Thank You for stating what you meant by arms. I had been unable to find the definition you were talking about.
Arms - "Any weapon that a person customarily carries upon himself to strike out or defend against another person."
This statement in and of itself proves that the definition is hopelessly out of date and has no bearing on the 2ed.
At no time would a rifle ever come under this definition.
If this definition was expanded to include rifles, it could still be read to ONLY protect SINGLE SHOT or extremely limited shot firearms. Such as revolvers. It would be EASY under this definition to outlaw ALL semi-auto firearms at the very least.
To except this definition we would have to believe that the FF's were STUPID. Because they definatly meant rifles and this definition does not protect rifles.
So here is what you are saying. That the States would call up the Militia. The People would come with their pistols (and maybe rifles) to organize and go to fight the government troops who have machine guns, cannon, aircraft, helos, tanks, and everything else. And these are the ARMS that the FF's protected for us to use?
In 1776, yes.
Today, you have got to be kidding!!!
The FF's weren't stupid. They were writting a Constitution for generations. They had just been through a very long and tough war. The idea that the 2ed would be as restrictive as you are saying would mean that the FF's thought that nothing would ever change. It just is not reasonable.
I can't believe that you think it is.
You can make a legalistic word shaving argument that the definition is STILL valid. But please don't expect ANYBODY to believe that the argument is reasonable or that anyone other than a lawyer would pay any attention to it.
The idea that the States would ever call up their militias to fight the Federal Government with pistols and maybe rifles is just to silly to even talk about.
In the 1860's the State Militias were at least organizied and had cannon. Nobody used that outdated definition of what arms were.
Since after WWI the State Organized Militias have been under total Federal control. What little the States have NOW is unarmed. These facts make your argument without value except for arguments sake. I cannot believe that a reasonable person would put it forward as a realistic argument to be seriously considered. Or that it could be EVER be considered a reasonable or even possible way (with its restriction on the definition of arms) to oppose a Federal Government gone BAD.
The main purpose of the 2ed has always been clear, to give the PEOPLE the ability to protect themselves against a Government gone BAD. Weither you think the People will do this as individuals or as States doesn't matter. The 2ed protects the ARMS required to give them this ability. The ARMS are DEFINED by this requirement and by NOTHING ELSE.
Make all the LEGAL lawyer arguments you like. The People KNOW that the above is the correct definition.
Dan: At no time would a rifle ever come under this definition.
Sure it would. Did you not read my comment? The part that said "anything that goes bang is protected, anything that goes boom is not protected"?
Dan: And these are the ARMS that the FF's protected for us to use?
Yes.
Dan: The People KNOW that the above is the correct definition.
Do they? Mr. Hardy uses a different approach to get to the same legal conclusion. Thus, he states: "To my thinking, jurisprudence like this is critical to establishing the Second Amendment as a viable legal force. It cuts off the argument that "well, if we do recognize a right to arms we'll have to let convicted bank robbers pack, or allow heat-seeking missiles and thermonuclear devices."
https://armsandthelaw.com/archives/2005/04/fifth_circuit_c.php#more
You would seem to allow at least the heat-seeking missle (perhaps not for convicted bank robbers, but that is a different argument) and your argument about "wmd not being useful in a rebellion" is curious and tenuous in light of the flavor of your current argument. It would seem that your current argument logically extends to any weapon which would be useful in combatting tyranny, including wmd's.
BTW, thank you for your argument, it makes for an interesting debate. It has been my experience that "individual right" people, debating between themselves, have much more interesting debates concerning the purposes and intricacies of the 2nd than those between an "individual right" person versus a "collective right" person. However, this forum is not well suited for an ongoing debate. In fact, it appears that this article will soon be heading towards the archives of this website. May I suggest a different forum in which we can discuss this, and other aspects of the 2nd more fully?
I have be reviewing your posts here and I would just like to touch on 2 points.
1st, I have to agree with Dan that the 2nd is used to ensure the people a final redress against a government that no longer responded to the grievencs of its people and have by their actions usurp the rights of those people. The people, in order to provide any type of defens against a tyranical government, must be able to posess the arms necessary to stop such usurption. To limit the capability of the people would be the same as bringing a knife to a gunfight.
2nd, as to governmental control of all National Guard units. The only difference between the Active duty and National Guard soldiers is which pot of money it is drawn, either title 10 or title 32. Both are from US Government coffers. Training is based on US Government installations by active duty personnel. Equipment is fielded by the active duty supply chains. The Supreme Court has maintained that the National Guard is under direction of the State for use during emergencies as that state sees fit. However, the US Government operational control of the National Guard ever since it was placed under the national military Reserves and is now, within the government, spoken of as the active guard and reserve which is different than the inactive reserve. BTW, both the direct reserve and National Guard are funded out of the same title 32 funds and both have the same call up criteria which is solely at the descretion of the US Government, the state must comply with any call up of the Guard or reserve.
I need to correct some errors from Mike L's post.
National Guard units fall under Title 32 until mobilized to federal status, when they then fall under Title 10. Federal Reserve units are ALWAYS under Title 10. Drilling reservists (Federal and NG) are in the Selected Reserve. Active Guard and Reserve (AGR) is a group of reservists (Federal and NG) who work full-time on active duty to support the units they are members of, or in the case of those at HQ National Guard Burea, for the whole NG. NGB AGRs are on Title 10 status full-time. You would be correct to refer to drilling members of the reserve components as active reservist, but not "Active Guard and Reserve" aka AGR.
As for federal control of reserve forces, the active components provide for the funding, regulation, doctrine and training to provide for uniformity, readiness and utility of the reserve organizations. The state governors have quite a bit of political power to bring to bear to maintain their NG forces.
"Has there been a revolt in the US? Of course-- there was that nasty little thing in the early 1860's... How was that revolt organized and prosecuted? Classic justification of the modified insurrectionist view. It almost succeeded in the face of a majority of the states in opposistion to the revolt and firm federal opposistion to the revolt."
Haha! Don't mess with the South.
From my understanding of the history of the Bill of Rights, the rights enumerated are guaranteed from encroachment by the Federal Government. Only through the "due process clause" of the fourteenth amendment were some of these rights also guaranteed from encroachment by states and localities. The question is whether the "due process clause" of the 14th amendment should include the second amendment's "right to bear arms" without "infringement." The amendment definitely restricts the federal government from "infringement" on the "right to bear arms," but does it prohibit states from "infringement?" Protection against "infringement" would seem to mean protection against practically any tampering.
Such an absolute prohibition is arguably stronger than any other language in the Bill of Rights and only make sense if it is understood as a restriction on federal but not state action. It basically tells the federal government to mind its own business. The bothersome "militia being necessary" phrase would seem to indicate that the second amendment is turning over "right to bear arms" to states but is not thereby creating an absolute right that cannot be "infringed" by states and localities.
Joseph Story, Book III, Pages 746-7, Paragraphs 1889-90
"§ 1889. 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."
§ 1890. 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.2 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.1"
What does any of this have to do with millitary assault weapons in the hands of regular citizens? If you go to the Southern Poverty Law site, you will see how home grown mallita terrorist groups that have these weapons, as well as C-4 plastic explossives, have had their destructive plans stoped by the F.B.I. from killing literally thousands of fellow citizens. Most owners of assault weapons are part of these groups, and their intension is to take over the Govt. when the great race war starts! In other words, they are dellusional, dangerious people. I am a gun owner, and have collected all of these weapons over the years,ie. thompsons, ar-15 ect. I do not need them to protect my home, and family! I think that a Glock, 22 rifle, shotgun and a 22 mag. are all I will ever need for that purpoise. I say get rid of the assault weapons. Former combat vet.
This is an outstanding piece of work, Dave. I salute you for it.
As a frequent albeit variably effective defender of the second amendment over dinner conversations, etc. I have always wanted to dig into the hisorical records and do just such an analysis. Your approach and your analysis are exactly right. It makes perfect sense.