Essay question for guncretins/gun loons

Explain the Second Amendment in light of US Constitution Article I, Section 8, Clauses 15 & 16 and Patrick Henry's Speech Below to the Virginia Ratifying Convention, 5 June 1788, Elliot 3:51--52:

A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States--reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither--this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.

Please realise that Henry was specifically addressing Article 1, Section 8, Clause 16 in responding to this question. He directly quotes that passage. I've highlighted that since I am pretty sure you would miss that bit if it weren't in bold, underlined, large print.

Also realise that this passage supports the civic interpretation of the Second Amendment and any essay supporting a right to arms outside of the militia context will have to overcome that hurdle.

OK, if firearms were commonplace, why is Henry worried that the Federal government would fail to arm the militia? Wouldn't that hint at scarcity rather than abundance? Also, by having the issue framed as failing to arm militia rather than confiscation, doesn't that also hint at the issue being provision of arms to the militia?

If you wonder why I find the civic right interpretation far more credible than an individual right outside of the militia context, it is because I have yet to see an explanation of the non-militia right that does not address these historical FACTS.

What really annoys me about gun cretins...

is the fact that they want to come and tell you their point of view, whether or not you want to hear it. And I have heard it all before.

It's pretty obvious that these people have not read or understood what I have written. It doesn't make much sense for me to waste my time repeating myself.

Of course, they will hammer in what they want to say.

I am sorry, but I have examined the subject of gun rights far more extensively than you have and some of the alleged "Second Amendment Scholars" out there have as well. I find that any right to arms outside of the context militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16) does not exist in the Second Amendment. Such a right can be found in State Constitutions (yet another reason that "incorporation" is ridiculous), but not in the Federal Constitution.

Additionally, don't come around here spouting shit you obviously haven't read, or understood, since if you did read it, you would have realised it shows that I am correct in my assertions that the Second Amendment is related to militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16). Or worse, you mention something that is completely unrelated to the Second Amendment or its history that shows you have a lack of comprehension of the topic.

To be quite honest, any comments the founders made about the "right to keep and bear arms" is most usually tied to a comment about the evils of a standing army. Unless you are seriously suggesting that the US adopt a Swiss style military system, the Second Amendment is pretty much a dead letter. And by that, I mean that you are seriously willing to dedicate your time to training and service in such an institution, you do not have a right to keep and bear arms.

Complaint

Somebody tagged this blog "The History and Politics of Second Amendment Scholarship", which really wasn't my intent when this started. Somehow, I have become an "expert" in this field for the Civic Right side.

So it goes.

My Third Amendment rights have been violated!

One of the dumber arguments about the Second Amendment's importance is that it is Second. Using that logic, shouldn't the Third Amendment be pretty significant?

OK, quick, tell me what does the Third Amendment say? It was one of the Complaints that was mentioned in the Declaration of Independence. That should make it significant: shouldn't it???

And back to the "It's third in line" argument. Third place will get you a bronze medal in the Olympics as well as other awards. You can collect if your horse comes in third if you place a "show" bet, but you get paid the "show payoff" even if your horse comes in First.

Well, here it is:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

You can find out how important the founders thought this Amendment was by going here.

They even have where this was mentioned in the Declaration of Independence, which also mentioned the issue of "Standing Armies".

So, the Third Amendment is not unrelated the Second Amendment which was intended to prevent a Federal Standing Army. I guess that means "the Third Amendment protects the Second" to rip off another stupid "gun rights" comment.

And Sorry, Gun Cretins or Gun Loons, but I HAVE read the history of the Second Amendment and related PRIMARY SOURCES to come to the conclusion that the Civic right interpretation is the correct one for the Second Amendment. But that's not my point here.

My point is that up until the 1930s, the Second and Third Amendments had the least Supreme Court Jurisprudence. Screw that, they HAVE the least Supreme Court Jurisprudence with 5 cases for the Second Amendment and NONE for the Third. Mostly because it's hard as heck to misinterpret the Third Amendment (unlike the Second).

Although, it provides a great justification for the "Castle Doctrine" using Story:

§ 1893. This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man's house shall be his own castle, privileged against all civil and military intrusion. The billetting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the petition of right (3 Charles I.), it was declared by parliament to be a great grievance.
Joseph Story, Commentaries on the Constitution 3:§ 1893

Actually, it's funny to read the primary sources on the Third Amendment, which really shouldn't be neglected: especially if you are going to argue the Civic Right Interpretation of the Second. This is because there IS a reason this is third, and it is related to the Second Amendment in that they both relate to the issue of standing armies and civilian control over the military, which was far more important that personal firearm ownership to the founders.

For more information on the History of the Third Amendment, try visiting:

* Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
* Willaim S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).

I think you will find an aversion to the maintenance of Standing Armies and civilian control over the military are common threads in Anglo-American history along with the history of other British Colonies. As other former British Colonies show, there was no common law concept of "gun rights" outside of militia duty.

Actually, it has been pointed out to me that the Soldiers and Sailors Civil Relief Act (SSCRA) gives service members certain special rights to terminate leases without penalty as well as to avoid eviction. Qualifying service members can also have their mortgages modified to cap the interest at 6%. The SSCRA makes no provision for just compensation to be made to the private parties who suffer the costs of its provisions; effectively, the owners of the affected properties have to bear all the costs.

So, join in the efforts of the Third Amendment Center in protecting this most important of rights! Fight the Soldiers and Sailors Civil Relief Act (SSCRA)!

Second Amendment--You go girl!

Thanks to MikeB for pointing out that Lisa Madigan is going to not play dead the way Walter Dellinger did (Dave Dellinger was one of the Chicago Seven). As I said in my comment to Mike's post, I point out the irony that the Second Amendment was to protect the States from Federal interference every chance I can get

I am glad that someone is willing to argue proper history in this matter and it's Illinois' Attorney General Lisa Madigan McDonald. Dellinger blew it in the Heller oral arguments because he forgot that precedent was on his side.

Yes, the Second Amendment was to protect against Federal Tyranny: in the form of an overblown military budget (why does no one seem to talk about the Standing Army issue?).

Yes, the Founders wanted local legislative power to control their own affairs. That's what the no taxation without representation bit was about.

DC was screwed by the Supremes.

The next question: how do you argue with historically ignorant justices?

I wish you all the best! Intelligent Women are soooo Sexy!

The Illinois AG's brief can be read here.

The Second Amendment in Art!

This is Charles Henry Granger's Muster Day which is in the National Gallery in Washington, DC. There is another version of this at the located at the Pennsylvania Academy of Fine Arts in Philadelphia.

Many able-bodied citizen between the ages of eighteen and forty-five were a members of the militia under the militia act of 1792. The annual muster day accomplished actual enrollment of the members into their units.

Local companies of militia would gather annually for parade and inspection at their regiment's muster day which often involved a thousand or more men from half a dozen towns. Food and alcohol vendors, showmen, fiddlers, auctioneers, charlatans, gamblers, and several thousand spectators turned these gatherings into regional festivals in an era of few such diversions. Muster days were structured social events in a regimental towns in ways not duplicated since. By 1830, muster days were under attack from those who resented the required participation. They were joined by temperance advocates, who objected to the considerable public drunkenness attending each muster, and later by critics of the Mexican War, who claimed that the existence of a peace-time militia had in fact led to this conflict.

"Their general good conduct on the field was creditable to officers and soldiers – with the exception of a few, (such as never know how to leave off when they have done), who fired promiscuously about the plain a long time after they had been dismissed, a practice always disreputable to good soldiers and the officers to whom they belong. the occasion attracted an unusual assemblage of spectators, pedlers, rumsellers, rumdrinkers and gamblers; whose noise, ribaldry, intoxication, and violation of the laws in the face and eyes of the authorities, was disgraceful to the place, to the occasion, to those specially engaged in it, and to all who looked on and tolerated it. We leave it to the people to judge whether there be more good than evil derived from ‘making a muster.’" --Report of the Amherst Muster Day from The Farmers’ Cabinet, 1834

Exemptions to Militia service were:

Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states"notwithstanding their being above the age of eighteen and under the age of forty-five years."

Or as the quote goes: "I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788 (that should be quite a few public officials).

So, militia service was NOT universal. In fact, Men actively sought exemption from militia service. This was a reason for the carnival atmosphere at muster days. Again from Story:

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.

To be quite honest, people had jobs and other things to do than militia service and sought exemption from that duty. The muster day had a carneval feeling because it made the obligation less painful. Still there was an obligation to perform militia service. Thie was compulsory military duty which required time away from your work.

Now, they demand the right without the obligation encumbent to that right.

Take My Freedom, Not My Gun?

Liberal Viewer has a really super video about gun control.

I don't think I need to add to what is said in this video.



One issue that needs to be raised is the disparity in funding between the "gun rights" organisations and gun control organisations. The "gun rights" organisations groups are spending in the millions whereas the gun control organisations are spending in the thousands. gun control organisations roughly spend about a tenth of what "gun rights" organisations spend.

Is that really grass roots and the will of the people or astroturf and spin?

Are we just dealing with Freedom Parrots?

Collective right new???

This decision was from 1942, which would put it well before 1970 and says that the Second Amendment: was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.

That sounds pretty "collective" to me. Not only that it's in pretty clear language that it was not adopted with individual rights in mind.

From U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942)

The Second Amendment to the Constitution of the United States provides: "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 appellant's contention is that if the statute under which this prosecution was brought is to be applied to a weapon of the type he had in his possession, then the statute violates the Second Amendment.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country, where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated militia protected by the Second Amendment.

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms "collective" and "individual" right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms--it's scope). Saying that the right is collective and belongs to the States isn't really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn't come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can't comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn't really define what exactly was being protected. The State's right to have militias? A personal right to own firearms outside of militia service?

That's why the question that the Supreme Court allegedly was considering in Heller was:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Justice Stevens pointed out that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. Justice Stevens's Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I paraphrase the dicta to make it comprehensible to modern minds as:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings."

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was "no" for a multitude of reasons. The Heller court had other dilatory tactics if it couldn't give the proper answer, but I digress...

The Founders came from the common law tradition and didn't totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State's legislative power, it was subject to the full scope of the state's police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no "gun rights" in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan's collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading "blackpowder" guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK's Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don't even bother to mention gun control. Maybe if someone wipes out an entire city...

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by "gun rights" advocates to buttress their position:

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”"The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of "defense of themselves" and "killing game" is mentioned. The problem is that the public can be disarmed for "unless for crimes committed, or real danger of public injury from individuals". This raises a few questions in my mind such as how strongly are the private purposes protected in light of "real danger of public injury from individuals". I believe that the fact that private purposes are mentioned in this passage, but aren't in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).

Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a "reasonable relationship to the preservation or efficiency of a well regulated militia" that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? "How will your militia be armed?"
Key words to clue you in: "subject to militia duty", "Common defence", security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is "no", then this is a private use.
Key words to clue you in: "defense of his home, person and property", family, hunting, recreational use, purpose of killing game, private use, etcetera.


Anyway, if one goes to the primary sources such as Patrick Henry's comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States—reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress."
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.

or Patrick Henry's "That every man be armed" speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects...May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavoured to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the "growing indifference to any system of militia discipline"

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. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an "individual right" we find a distinct civic tone. Why would one need "some organization" if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware's from 1987, Nebraska's from 1988, and the change in language between Idaho's provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. Art. I, § 1 (right to keep and bear arms enacted 1988).


Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: "The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law." Art. I, § 11.

I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.

Kevin Gutzman on DC v. Heller

I just bought a copy of Prof. Gutzman's The Politically Incorrect Guide to the Constitution where he left out any commentary on the Second Amendment. I found this interesting since the Politically Incorrect Guides take the "pro-gun" side of the issue. This is what I found:

March 18, 2008
Gun Control and the Second Amendment
Posted: 05:19 PM ET
Kevin R.C. Gutzman, J.D., Ph.D.

Neither side has it right in the Second Amendment case currently before the Supreme Court.

District of Columbia v. Heller is an appeal from a federal appeals court’s decision that the D.C. gun control laws violate the Second Amendment. The circuit court’s decision reflected what I believe is the emerging scholarly consensus around the position that the Second Amendment involves an individual right to keep and bear arms.

Gun control advocates on one side and gun rights advocates on the other dispute this question. Since I am known as an originalist, I was asked to sign an amicus brief arguing that the Second Amendment bans laws like D.C.’s. I refused to sign.

Does that mean that I do not believe that the Second Amendment reflected an individual right to keep and bear arms? No, it means that I do not believe that the District of Columbia is governed by the Second Amendment.

Why? Because the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.

The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill’s preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government’s] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.

The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.

One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.

If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.

Editor's note: Gutzman, an associate professor of history at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution and, with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush

More Prof. Gutzman
9th Circuit "Incorporates" 2nd Amendment
8:43 AM PDT, April 23, 2009
Before the Supreme Court's Heller decision striking down DC's gun regulations as violations of the 2nd Amendment, I argued for the opposite outcome here: http://ac360.blogs.cnn.com/2008/03/18/gun-control- the-second-amendment/. In brief, I reasoned that under home rule, DC was a quasi-state, and that the Bill of Rights had been intended solely as a limitation on the Federal Government; therefore, I concluded, DC's government was not subject to the 2nd Amendment.

The Supreme Court disagreed. Today comes news that the 9th Circuit Court of Appeals has gone the Supreme Court one better, enforcing the 2nd Amendment against an actual state. The so-called Incorporation Doctrine, which has turned a bill of rights intended as a limit on federal legislative power over the states into an instrument of federal judicial power over the states, thus takes new territory.

All without any warrant from the Constitution.

A couple of interesting items.

I am working on something about the Collective and Individual right and found these:

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. "

Scribble Scrabble," Cumberland Gazette, January 26, 1787; "Scribble-Scrabble," ibid., December 8, 1786

That is Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms. The right to keep arms for civilian purposes was not removed from the sphere of legislative power, it was subject to the full scope of the state's police powers.

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge, the most important murder trial of the early republic. Selfridge's lawyer conceded that "every man has a right to possess military arms" and "to furnish his rooms with them." Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge's attorney argued "there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms." Given this fact, it was indisputable that "in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime." Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Does the Second Amendment apply to the States?

The problem with the Second Amendment is that it was intended to prevent Federal interference with State run militias organised under Article I, Section 8. I've gone on at length that most of the half quotations used by those posing as Second Amendment scholars deal with the conflict between the Federal Army and the State Militias set up under Article I, Section 8--not some weird individual right. That was pointed out in United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Scalia breezed over this very salient point to Second Amendment jurisprudence as do most alleged "Second Amendment Scholars". Amusingly enough, Scalia has already said it doesn't: “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” A Matter of Interpretation: Federal Courts and the Law (1997). Let's see if he can stick with his own precedent!

Anyway, The Second Amendment is a limitation on the Federal Power granted Under Article I, Section 8. As I pointed out in my critique of Dellinger's advocacy he neglected that Miller had already set for the standard of review and that the Second Amendment was written to address the Federal Power granted Under Article I, Section 8, which he should have hammered on about like a broken record.

Now, Any first year law student who has participated in moot court knows that one shouldn't let the Judges take over your argument. Dellinger should have hammered that it was settled law by a Unanimous opinion and that the Second Amendment guarantee should not be extended.

Now with Chicago fighting any Second Amendment challenge to its gun ban based upon the Second Amendment being a limitation on the power of Congress/Federal Government and not local jurisdiction. I hope that Chicago has better appellate advocates than does Washington, DC.

On the other hand, I hope that other lawyers see the advantage to open up the scope of rights granted by the Bill of Rights since Heller was willing to give a broad reading to the rights granted under that document. The Heller decision was bad law as it set a precedent which will allow for much mischief by clever lawyers.

Why should we be bound by the words of the Constitution, especially where clever lawyers can argue an extension of our rights?

As I said, isn't health care a fundamental right? How can one argue with health care?

I want my right to health care that is guaranteed under the Ninth Amendment!