Framers to the Civil War
Dave Kopel's latest paper
"How the British Gun Control Program Precipitated the American Revolution". I suggest downloading the paper, not only because it's interesting, but also because that drives up the paper's SSRN statistics. If you get a high enough readership, you make "top ten" in Con Law downloads, and all subscribers to SSRN get an email announcing that, which gives a paper wider exposure.
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A new view of Justice Taney
We probably all know of Dred Scott and its author, CJ Roger Taney. I just encountered an unusual insight into the fellow. American State Trials, vol I at 69 ff has an account of a case he tried and won in 1819.
His defendant was a Methodist Episcopal minister charged with violating the Slave Code (which forbade whites to oppose slavery publicly), It was claimed defendant had given a sermon denouncing slavery (and saying that it was a wonder the slaves didn't rise up and cut their masters' throats, and that slaves were treated as if they had no souls, when in fact they were more likely to end up in heaven than were their tyrannous masters) to a church full of ... slaves.
Taney by the account gave one rousing jury argument. He starts by saying that everybody knows that church opposes slavery and its ministers give sermons to that effect. The slaves came voluntarly, and their masters presumably did not forbid them.
He goes on to say that a person is clearly protected in preaching their religious creed, unless the statements are immoral and calculated to disturb the peace and order of society, while "subjects of national policy may, at all times, be freely and fully discussed in the pulpit, or elsewhere, without limitation or restraint." If the sermon offended or alarmed some of the listeners, "Their feelings, or their fears, would not alter the character of this doctrine or take from him a right secured to him by the constitution and laws of the state."
He argues it is necessary to prove evil intent; and on this even his own words are not conclusive evidence. If you take his words, many of the Framers said the same of slavery, or even worse. Are they guilty of incite slave revolt? "A hard necessity" may compel us to endure "the evil of slavery for a time. It was imposed upon us by another nation, while we were yet in a state of colonial vassalage. It cannot be easily or suddenly removed. Yet while it continues, it is a blot on our national character, and every real lover of freedom, confidently hopes it will be effectually, though it must be gradually, wiped away, and earnestly looks forward for the means by which this necessary object may be best obtained. And until it shall be accomplished, until the time shall come when we can point without a blush to the language held in the declaration of independence, every friend of humanity will seek to lighten the galling chain of slavery, and to better, to the utmost of his power, the wretched condition of the slave."
This is the later Chief Justice Taney!!!!
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Another pre-Civil War enactment
I previously pointed out that both the 1856 Republican and the 1864 Democratic Party platforms discussed the Second Amendment in an individual rights context. This underscores the point that the "collective rights" theory is a recent invention, not an understanding held by the generation of the framers (or, in this case, even 2-3 generations later).
I just found another such indicator from this period -- the Senate version of the Kansas Enabling Act (1856). (I haven't yet checked the version the Senate approved vs. the Statutes at Large. A quick Google indicates that the situation ended up rather strangely, with the state convention authorized by the enabling act rigging the ratifying vote, the new legislature overriding that, and Congress in the end admitting Kansas as a state notwithstanding).
To complicate further, the Library of Congress link for this is far too long to post here, but it can be accessed via LoC's American Memories Collection.
Sec. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed.
Hmm--and here's the House version, introduced by Rep. Stephens:
"Sec. 16. And be it further enacted, That no person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in said Territory; that the inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus, of trial by jury, of proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. . . . . And the people of said Territory shall be entitled to the right to keep and bear arms, to the liberty of speech and of the press, as defined in the constitution of the United States, and all other rights of person or property thereby declared and as thereby defined."
It's from Journal of the House of Representatives of the United States, SATURDAY, June 28, 1856, p.1126. You can access that via the Library of Congress although you have to do a keyword search for it.
The point made by these legislative votes, and by the inclusion of individual arm/second amendment planks in both party platforms during the 1850s and 1860s, is simply that during this period (and in fact up until the 20th century) everyone regarded the Second Amendment as an individual right. It didn't need to be debated -- the meaning was taken for granted, just as in the era of the Framers.
Continue reading "Another pre-Civil War enactment"
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Party Platforms, mid-19th century
An interesting historical point (thanks to Gene Volokh for the discovery):
In the mid-19th century, both major parties saw the right to arms as an individual right. The 1856 Republican platform protested at disarmament in Kansas, and the 1864 Democratic one at disarmanent in Maryland.
"Resolved: That while the Constitution of the United States was ordained and established by the people, in order to "form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty," and contain ample provision for the protection of the life, liberty, and property of every citizen, the dearest Constitutional rights of the people of Kansas have been fraudulently and violently taken from them.
Their Territory has been invaded by an armed force;
Spurious and pretended legislative, judicial, and executive officers have been set over them, by whose usurped authority, sustained by the military power of the government, tyrannical and unconstitutional laws have been enacted and enforced;
The right of the people to keep and bear arms has been infringed....
The right of an accused person to a speedy and public trial by an impartial jury has been denied;
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, has been violated...."
1864 Democratic Party Platform:
"Resolved, That the aim and object of the Democratic party is to preserve the Federal Union and the rights of the States unimpaired, and they hereby declare that they consider that the administrative usurpation of extraordinary and dangerous powers not granted by the Constitution — the subversion of the civil by military law in States not in insurrection; . . . the suppression of freedom of speech and of the press; . . . and the interference with and denial of the right of the people to bear arms in their defense is calculated to prevent a restoration of the Union and the perpetuation of a Government deriving its just powers from the consent of the governed. "
The point is simply that, in the period after the adoption of the Second Amendment, and immediately preceding that of the Fourteenth Amendment, there seems to have been no doubt that the right to arms was an individual right, and on a part with First, Fouth, and Fifth Amendment rights.