Original Intent and Purpose of the Second Amendment

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Original Intent and Purpose of the Second Amendment
Chip User ID: 673477 United States 05/04/2010 01:27 PM Report Abusive Post Report Copyright Violation	Original Intent and Purpose of the Second Amendment 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 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 authorize 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. "Because great 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 pretense 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. (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 defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation's 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 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." 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 Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.) 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. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991). 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 the 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. 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: [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: [link to guncite.com] 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.) [link to www.guncite.com]

Anonymous Coward (OP) User ID: 673477 United States 05/04/2010 01:30 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment Is there Contrary Evidence of an Individual Right? No, but that hasn't stopped people from trying to produce some. Typically, it is asserted that the Second Amendment was not intended to serve as a check against the potential of a tyrannical government, nor preserve any individual right whatsoever, and that any right to keep arms as referred to in the Second Amendment, applies only while serving active militia duty (such as in today's National Guard). Not a Check Against a Tyrannical Government? Historian Garry Wills has made an attempt at claiming the above. An online article, from the gun control group Join Together, reports Wills as writing "any claims that the Constitution ensures an armed citizenry as a bulwark against the potential tyranny of government is a myth [emphasis added]. 'You can't read the amendment apart from the body of the Constitution,' he wrote, 'and the body of the Constitution defines taking up arms against the United States as treason.' " [quoting Wills from his book, A Necessary Evil: A History of American Distrust of Government (1999)] A myth? Not according to Supreme Court Justice Joseph Story (appointed by James Madison in 1811): "The importance of this article [the Second Amendment] 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." [emphasis added] ---Commentaries on the Constitution of the United States, CHAPTER XLIV, AMENDMENTS TO THE CONSTITUTION (Who's commentaries on the Constitution would you give greater weight to? Historian Wills', who has very strong opinions on gun owners and gun ownership, or Justice Story's?) [1] Of course, it's not a right of insurrection or rebellion against a constitutionally elected government that the Second Amendment protects. As Justice Story writes, the right to keep and bear arms offers protection against "usurpations of power by rulers." In fact, "[t]he Governors of Virginia and Pennsylvania were ready to call out the militia if the Federalists in Congress usurped the election of 1800 and blocked the selection of Thomas Jefferson or Aaron Burr as president." (Guns, Words, and Constitutional Interpretation, Powe, L.A. Jr.) Even James Madison, himself, wrote that the Constitution was "subject to the Revolutionary Rights of the people in extreme cases." [emphasis original] (James Madison to Daniel Webster, 15 Mar. 1833, Writings 9:604--5) James Wilson, another Founder, wrote, "a revolution principle certainly is, and certainly should be taught as a principle of the constitution of the United States, and of every State in the Union." (James Wilson, Of the Study of the Law in the United States, Lectures on Law 1791 Works 1:76--79) None of this should be surprising, especially since the militia was initially relied upon as the "cornerstone of armed resistance to British policy" (question 3.6 from a militia FAQ). And when Congress was considering its first mlitia act, Congressman James Jackson (Georgia) commented on his vision of a militia: "In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils--a standing army." ---"The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1853). The fact that the militia can be called out to either suppress insurrections or act as the check of last resort is by no means contradictory. Claiming the Second Amendment does not include a check against a tyrannical government because the Constitution provides a means of suppressing insurrections, or defines as treason the taking up of arms against the government, is a non sequitur. To Keep and Bear Arms: No Private Right? To Keep Just as some anti-individual right proponents believe "the people" doesn't include people as individuals, incredulously, some writers claim "keep" doesn't mean what one would ordinarily think "keep" means. For example: Claim: To "keep" arms in eighteenth-century usage meant to have them in one's personal possession. Riposte: To "keep" arms in eighteenth-century usage meant to hold them in a communal military arsenal. (Disarmed by Time: The Second Amendment and the Failure of Originalism, Farber, Daniel A.) The following laws not only contradict the above fanciful "riposte," but show that non-militia members as well, were expected to "keep" arms at home: "That all persons though ffreed from Training by the Law yet that they be obliged to Keep Convenient armes and ammunition in Their houses as the Law directs To others." 1 The Colonial Laws of New York. Persons exempted from enrollment and service in the militia were "required and enjoyned to provide and keep at their respective places of abode ... arms and ammunition." 3 Laws of Virginia. (The Right to Arms: Does the Constitution or the Predilection of Judges Reign? Dowlut, Robert.) Forced Communal Storage of Colonial Arms? In its brief in the Emerson case, the Center to Prevent Handgun Violence (CPHV) claims, "Colonial legislatures from New Hampshire to South Carolina imposed communal storage of firearms and permitted them to be removed only in times of crisis or for muster day. See Harold L. Peterson, Arms and Armor in Colonial America 1526-1783 321-335 (1956)." However, the citation does not check out. The only hint of communal or compulsory storage in that citation is for arms and ammunition that were purchased by state or local legislatures, or supplied by the King. Click on the citation and see for yourself. The CPHV's claim is similar to asserting books are kept communally after only examining our public library system. Actually, the citation notes many instances of personal firearms ownership or statutes where enlisted men were expected to provide themselves with arms. (History professor Michael Bellesiles makes the same claim with the embellishment that "legislators feared that gun-toting freemen might, under special circumstances, pose a threat to the very polity they were supposed to defend. Colonial legislatures therefore strictly regulated the storage of firearms, with the weapons kept in some central place, to be produced only in emergencies or on muster day, or loaned to individuals living in outlying areas. They were to remain the property of the government." [Arming America, p. 73] Bellesiles cites the same Arms and Armor source as well as several others. His citations are every bit as misleading as the latter, and more. His claims and citations deserve and warrant a separate page which can be viewed here.) Throughout the Colonial period, private ownership and possession of arms was compulsory or encouraged. A smattering of quotes demonstrating this is shown: "It is further ordered that each inhabitant in this corporation that according to order is to provide and keep Armes, shal provide four pounds of bullets and one pound of powder; and that the chief military officers in each towne shall have power by themselves either by requireing the souldires to appeare at a time and place appointed with their Armes and amunition or by sending forth the clarke to veiw the said amunition..." [1665] --- The Public Records of the Colony of Connecticut, vol. 2, pp. 19-20 "Provided always, and be it enacted, That eighteen months time be given and allowed to each trouper and ffoot soldier not heretofore listed to furnish and provide himself with arms and ammunition according to this act, & that no trooper or foot soldier be fined for appearing without or not having the same at his place of abode untill he hath been eighteen months listed..." [1705] --- The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 6, p. 338 "That every listed souldier and other house-holder (except troopers) shall always be provided with and have in continual readiness, a well-fixed firelock... [and fines levied] for want of such arms and ammunition as is hereby required..." [1741] --- The Public Records of the Colony of Connecticut, vol. 8, p. 380 "For as much as a great Number of Men who shall inlist, or be engaged in the Forces in the Pay of this Province, will be possessed of good Arms of their own, which it is apprehended they will prefer to those furnished by the Crown, not only from their being much lighter, but as from their being accustomed to them, they will be much surer of their mark with those, than with Arms they never handled before... And as a Powder-Horn, Shot-Bag, with a Case for the Lock of their Gun, to preserve it from the Weather, are thought more proper for the present Service than the common Accoutrements, the Men are also to come provided therewith." [1758] --- "Lieutenant Governor and Commander in Chief, in and over the Province of New York, and the Territories depending theron in America," Muster rolls of New York provincial troops 1755-1764, vol. 12, p. 514 [Named militia officers from the various townships in which they reside are] "authorized... to proceed from House to House thro' their respective districts and purchase at the cheapest Rate they can be obtained for ready money all such good musketts and firelocks fit for the use of Soldiers, as can be spared by the Inhabitants of the Townships--That those Gentlemen respectively be requested not only to purchase arms as cheap as they reasonably can, but in no case to exceed the price of four pounds for any one Gun Muskett or Firelock...And it is hearby recommended to the Inhabitants of the said Townships to sell such musketts or firelocks as they can spare retaining arms for their own use." [1776] --- Documents of the Colonial History of New York, vol. 15, p. 103 Private ownership of military weapons for military purposes continued to be enforced or encouraged during the post-Revolutionary period as well: "Provided, That the militia of the counties westward of the Blue Ridge, and the counties adjoining thereto, shall not be obligated to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer." [1785] --- The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 12, p. 12 Comments of two Founders while discussing the organization of the Nation's first militia: "ubjecting the whole body of the people to be drawn out four or five times a year was a great and unnecessary tax on the community...As far as the whole body of the people are necessary to the general defence, they ought to be armed; but the law ought not to require more than is necessary; for that would be a just cause of complaint." [1790] --- Representative Thomas Fitzsimons (Pennsylvania) "The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1852). "There are so few freemen in the United States who are not able to provide themselves with arms and accoutrements, that any provision on the part of the United States is unnecessary and improper." [1790] --- Representative Roger Sherman (Connecticut) "The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1854). The first federal militia statute: "That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt..." --- Militia Act of 1792 "Return of the Adjutant General of the enrolled militia in Pennsylvania, which contained an inventory of the supply of arms (of all types) available for militia use. The editor of the Democratic Press described the Return in these words:" "Our stock of Public Arms are respectable but it is still more gratifying to observe the number of Private Arms returned. There are no less than twelve thousand six hundred and seventy-eight Rifles reported as private property, and two thousand and thirty-eight public rifles .... Sharp Shooting, Good Marksmanship, is eminently a trait in the American Character ...." --- DEMOCRATIC PRESS (Phila.), Mar. 8, 1823, at 2. (Source) Of course some gun control advocates claim since gun registration was sanctioned then (as the previous quote demonstrates), it should certainly be acceptable today. However, the context is completely different – in the past, ownership of militia weapons was encouraged, today it is practically forbidden. To Keep-up a Militia? Wills, in an article titled, "To Keep and Bear Arms" (The New York Review of Books, September 21, 1995), writes, "[g]un advocates read 'to keep and bear' disjunctively, and think the verbs refer to entirely separate activities. 'Keep,' for them means 'possess personally at home'--a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias." (Emphasis added.) (Click here to see Wills' entire comments regarding "keep.") What's fanciful is Wills' hypothesis. It is certainly plausible to claim a phrase means something different from each of its individual words separately. (It's especially tempting when one doesn't like the implications of the words taken at their plain meaning.) However, in this case, Wills ignores the vast body of contrary evidence and offers nothing credible to support his claim. Wills writes, "To understand what 'keep' means in a military context, we must recognize how the description of a local militia's function was always read in contrast to the role of a standing army." Armies were not kept-up or left standing, militias were kept in readiness. This is true, however unfortunately for Wills, "keep" modifies arms in the Second Amendment, not the well-regulated militia, and as one can see from the examples above, keeping arms in a military contex, when referring to the right of the people, means to personally keep. The people's right to keep arms was guaranteed, against infringement by the federal government, to ensure that the militia could be kept-up. Summarizing how militias operated in England, and quoting at length from an essay written by Englishman John Trenchard, in 1697 (yes, 1697), Wills tries to draw a parallel between the English and American systems by quoting from the Articles of Confederation: "[E]very state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage." He continues, "Thus it is as erroneous to suppose that 'keep' means, of itself, 'keep at home.'" "Keep-up" modifies militia. To repeat again (since Wills makes the same mistake), the meaning of the word keep will of course vary depending on its context and what it modifies. "Keep" in and of itself will not always mean "keep at home" or more precisely keep as an individual. And neither does the fact that the colonies or states had public arsenals imply the right of the people to keep and bear arms is protecting a right to keep arms publicly rather than private arms. The Articles of Confederation provision, which directs the states to provide a "proper" amount of arms is constructed quite differently from the Second Amendment which is meant to preserve the right of the people to keep arms. Wills also tells us that it is erroneous to assume "'arms' means only guns: As Patrick Henry tells us, the militia's arms include 'regimentals, etc.'--the flags, ensigns, engineering tools, siege apparatus, and other 'accoutrements' of war." Wills has twisted Patrick Henry's statement that refers to arms and equipment in a desparate attempt to show the Founders could not have intended the keeping of arms to be a personal, private right. (Henry's full statement, in context can be viewed here.) (For a quote that not even Wills could twist, see Roger Sherman's comment above, which refers to arms. ("There are so few freemen in the United States who are not able to provide themselves with arms and accoutrements...") "In America, 'deposition' of arms from the proper hands occurred, most famously, when the King's troops seized the militia's arsenals at Concord in the north and at Williamsburg in the south. That is where arms were kept, lodged, maintained." Again, more twisting from Wills. The historical record suggests otherwise. There were few arms stored publicly at Concord. Most were privately held, but significant provisions for food, ammunition and powder, and a small number of cannon, were stockpiled in public storage. (See Lemuel Shattuck [hereinafter Shattuck], "A history of the town of Concord, Middlesex County, Massachusetts." Reprint, The Printery [1971]. Originally published: Russel, Odiorne, and Co.; Concord: J. Stacy, 1835. Pp. 93-99.) Shattuck (p. 99) also writes, "The excitement was so great that some carried their guns with them at all times, even while attending public worship on the Sabbath." Wills concludes, "To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself [emphasis added], to the conjuction of terms, and to the entire context of" the Second Amendment. Just the quotes from this page, contradict Wills' conclusion, and show that "keeping arms," within the context of the Second Amendment, refers to a private right to possess and own arms in one's dwelling. Also one can see that "arms" signified personal arms such as firearms and swords. Wills musters only one quote that mentions keeping arms (in a parish!) from a late-17th century essay on English militias. The keeping of arms by the people, as individuals, was either encouraged or mandatory for militia members, potential members, and served as an additional source of arms for the militia during emergencies. Impressment The CPHV's brief, cited above continues, "Even during the American Revolution, Connecticut and North Carolina impressed firearms without hesitation (citations omitted). Consistently, individual gun possession yielded to collective needs." In emergencies, guns were impressed, but so were many other items as well as people (not just solidiers). (See The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 7, pp. 26-7, The Public Records of the Colony of Connecticut, vol. 10, pp. 479-80. Also, "In times of emergency, the law [of South Carolina] allowed the impressment of supplies, vessels, wagons, provisions, supplies of war, ammunition and gunpowder and such other items as the militia might require. If ships of any description were required, their pilots and sailors could be impressed." [Whisker, James, Militia Treatises, vol. 5]) In emergencies (whether real or perceived) our government occasionally resorts to extreme measures such as impressment, or restrictions on civil rights. A more recent example is the "day of infamy" where Americans of Japanese descent were ordered excluded from the West Coast (Korematsu v. United States, 323 U.S. 21 (1944). See also, Hirabayashi v. United States, 320 U.S. 81 (1943), upholding earlier curfew applying to American citizens of Japanese descent). In emergencies, the right to keep arms has no more "yielded to collective needs" than many other individual rights. Active Militia Members Only? Some anti-individual right proponents claim today's Second Amendment only protects gun ownership when actively serving in a militia such as today's National Guard. This is usually rationalized by claiming either the militia equals the people, or the militia clause restricts gun ownership to "members only." The militia and the people were roughly equivalent, but not identical. The "people," as referred to throughout the Bill of Rights were considered freemen as individuals, not militia members. Thus the term people has a wider scope than militia members which were typically from the age of majority to forty-five or fifty years of age. However people older than fifty, if they were capable of bearing arms, could volunteer for militia duty (for example see Shattuck, p. 93), and of course they had the right to keep arms. And, as we know, the right to keep and bear arms refers to the people not the militia. Not all people were militia members. 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.) Was the militia clause meant to be restrictive? There is no evidence that was the intention. The writings of three constitutional commentators, who were contemporaries of the Founders, provide very strong evidence to the contrary. If the militia clause had meant to be restrictive rather than merely stating a rationale or purpose, it's hard to believe that these three jurists would misconstrue the intent and meaning of the Second Amendment: * St. George Tucker - "The right of self defence is the first law of nature." * William Rawle - "The prohibition is general." * Joseph Story - "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic." (See GunCite's "Quotes from Constitutional Commentators") (For further comment on the effect of the preamble [the militia clause], see the Fifth Circuit Court's opinion in the Emerson case [scroll down to the section labeled "2. Effect of Preamble."] [(PDF format)]) Conclusion After examining the text, laws and customs of the time, and the words of the Founders and their contemporaries, the narrowest plausible reading of the Second Amendment is that it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.
Idaho Minuteman User ID: 960918 United States 05/04/2010 01:43 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.” Thomas Paine ----------------------------------- Catch us on NBC! [link to photoblog.nbcnews.com] [link to www.youtube.com] www.lightfootmilitia.com --------------------------------
Anonymous Coward (OP) User ID: 673477 United States 05/04/2010 01:50 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment Thanks for the bump. It seems these days that people cannot properly discern what our forefathers truly intended. Except for Arizona legislature and Governor, our nation has given in to those who are pro crime/gun control. In fact, it would appear that anybody pro gun control doesn't mind people dying violently without the means to protect themselves in a proactive manor. And that last point should be the slogan for a new movement to arm the American public. Law abiding citizens should have free access to the tools of self defense that our nations founders intended!
Anonymous Coward User ID: 942073 United States 05/04/2010 01:58 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment 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." Quoting: Chip 673477 The text above is correct... 1 comma.. In 1871... Congress published an inaccurate (read:fraudulent) version of the second amendment, with 3 commas, not 1. This subtle modification alters the original intent. OP and the courts allude to this fraudulent version in the following paragraph. 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)) Quoting: Chip 673477 The fraudulent version is the source of much of the confusion regarding the 2nd amendment... as was intended. Original: "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." Fraudulent: "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." Even the NRA had the fraudulent version posted on their splash page, until I pointed it out... lol
Anonymous Coward (OP) User ID: 673477 United States 05/04/2010 02:05 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment 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 text above is correct... 1 comma.. In 1871... Congress published an inaccurate (read:fraudulent) version of the second amendment, with 3 commas, not 1. This subtle modification alters the original intent. OP and the courts allude to this fraudulent version in the following paragraph. 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)) The fraudulent version is the source of much of the confusion regarding the 2nd amendment... as was intended. Original: "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." Fraudulent: "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." Even the NRA had the fraudulent version posted on their splash page, until I pointed it out... lol Quoting: Anonymous Coward 942073 A slight oversight on my part. You are correct. But, I do believe some of the states have placed the "fraudulent" version into their constitutions...no? Besides, this particular discussion needs to be had...and you know it...we need a strong stance to make it known that we will not be unarmed! The point needs to be driven home while the subject is hot!
Anonymous Coward User ID: 954680 United States 05/04/2010 02:06 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment 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 text above is correct... 1 comma.. In 1871... Congress published an inaccurate (read:fraudulent) version of the second amendment, with 3 commas, not 1. This subtle modification alters the original intent. Quoting: Anonymous Coward 942073 In what way did they publish it? Quoting someone who spoke it and then was published in the Congressional Record? As a "bill"? This would be enlightening to know....
Anonymous Coward (OP) User ID: 673477 United States 05/04/2010 02:11 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment "Second Amendment Challenge The Challenge Provide an authentic quote from one of the Founding Fathers, their contemporaries, or a 19th century Supreme Court decision, indicating that the Second Amendment was meant to apply solely to a well-regulated militia. The space below is reserved for this challenge." See how many people have met the challenge --> [link to www.guncite.com]
Anonymous Coward (OP) User ID: 673477 United States 05/04/2010 02:38 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment Gimme a pin mods...I want some bed wetters to get in here and make their claims...lol
Anonymous Coward User ID: 942073 United States 05/04/2010 03:09 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment A slight oversight on my part. You are correct. But, I do believe some of the states have placed the "fraudulent" version into their constitutions...no? Quoting: Anonymous Coward 673477 All dejure constitutions were replaced with defacto. All states that existed during the civil war had their constitutions rewritten by force of arms (southern states) or by deception or other means (northern states) between 1868 and the 1890's, and all states were brought into a position UNDER Congress. (ever wonder how the fed got on top?) In these rewrites, Man was replaced with 'person', (in some cases years before the US Supreme Court was fraudulently claimed to have given corporations (persons) that standing). This is the beginning of what today is known as 'statutory jurisdiction'. Territories that became states after the civil war, never had anything other than a statutory version of their constitution (no common law).
Anonymous Coward User ID: 942073 United States 05/04/2010 03:34 PM Report Abusive Post Report Copyright Violation	Re: Original Intent and Purpose of the Second Amendment In what way did they publish it? Quoting someone who spoke it and then was published in the Congressional Record? As a "bill"? This would be enlightening to know.... Quoting: Anonymous Coward 954680 Read Chap LXII - An Act to provide a government for the District of Columbia [link to memory.loc.gov] This is the adoption of the new 'corporate' (defacto) federal constitution. Constitution "OF" the US... Not Constitution "FOR"... of 1788 & 9. [link to en.wikipedia.org] District of Columbia Organic Act of 1871 The District of Columbia Organic Act of 1871 (41st Congress, 3d Sess., ch. 62, 16 Stat. 419, enacted 1871-02-21) is an Act of Congress, which revoked the individual charters of the City of Washington, the City of Georgetown, and the County of Washington and created a new city government for the entire District of Columbia. The legislation effectively merged what had been separate municipalities within the federal territory into a single entity. It is for this reason that the city, while legally named the District of Columbia, is still commonly known as Washington, D.C. Wikipedia acknowledges the different 2nd amendments [link to en.wikipedia.org] (scroll down to 'text') Text There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[4] One such version was passed by the Congress, which reads:[5] “ 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. ” Another version is found in the copies distributed to the states, and then ratified by them, which had this capitalization and punctuation:[6] “ 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. ”
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