The Second amendment

[Tero]

No, it's all "interpretation". None of it is founding fathers intent.

[Seth]

No, it's all "interpretation". None of it is founding fathers intent.

Not according to the Founding Fathers themselves:

Here's just a small sample for your edification, as if there were any point...

The Founding Fathers on the Second Amendment
By Bill Bailey

Benjamin Franklin

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“Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!”

George Mason, co-author of the Second Amendment

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“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” – Speech in the Virginia Ratifying Convention, June 14, 1778

“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” – Virginia Declaration of Rights, June 12, 1776

Richard Henry Lee, Anti-Federalist

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“A militia when properly formed are in fact the people themselves… and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms… The mind that aims at a select militia, must be influenced by a truly anti-republican principle.” – Letters From the Federal Farmer to the Republican, Letter XVIII, January 25, 1788

“(W)hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.” – Federal Farmer, Anti-Federalist Letter, No.18, The Pennsylvania Gazette, February 20, 1788

“No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state…such area well-regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” – Richard Henry Lee, State Gazette (Charleston), September 8, 1788

Samuel Adams

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“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” – Debates of the Massachusetts Convention of February 6, 1788; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1788 (Pierce & Hale, eds., Boston, 1850)
George Washington

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“At a time, when our lordly masters in Great Britain will be satisfied with nothing less than the deprivation of American freedom, it seems highly necessary that something should be done to avert the stroke, and maintain the liberty, which we have derived from our ancestors. But the manner of doing it, to answer the purpose effectually, is the point in question. That no man should scruple, or hesitate a moment, to use arms in defence of so valuable a blessing, on which all the good and evil of life depends, is clearly my opinion. Yet arms, I would beg leave to add, should be the last resource, the dernier resort. Addresses to the throne, and remonstrances to Parliament, we have already, it is said, proved the inefficacy of. How far, then, their attention to our rights and privileges is to be awakened or alarmed, by starving their trade and manufacturers, remains to be tried.” – Letter to George Mason, Apr. 5, 1769; The Writings of George Washington, collected and edited by Worthington Chauncey Ford (New York and London: G. P. Putnam’s Sons, 1889). Vol. III (1758-1775)

“It may be laid down, as a primary position, and the basis of our system, that every citizen who enjoys the protection of a free government, owes not only a proportion of his property, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at Short Notice on any very interesting Emergency.” – Sentiments on a Peace Establishment in a letter to Alexander Hamilton, May 2, 1783; The Writings of George Washington [1938], edited by John C. Fitzpatrick, Vol. 26, p. 289

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent on others for essential, particularly for military, supplies.” – Speech in the United States Congress, January 8, 1790; George Washington: A Collection, compiled and edited by W.B. Allen (Indianapolis: Liberty Fund, 1988), Chapter 11

John Adams

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“We are told: ‘It is a universal truth, that he that would excite a rebellion, is at heart as great a tyrant as ever wielded the iron rod of oppression.’ Be it so. We are not exciting a rebellion. Opposition, nay, open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land. Resistance to lawful authority makes rebellion. … Remember the frank Veteran acknowledges, that “the word rebel is a convertible term.” – Novanglus Essays, No. V, 1774 – 1775; The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams, Volume 4; (Boston: Little, Brown and Co., 1856), 10 volumes.

“To suppose arms in the hands of citizens may be used at individual discretion in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government.” – A Defence of the Constitutions of Government of the United States of America, Chapter Third: Marchamont Nedham, Errors of Government and Rules of Policy, 1787; The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams, (Boston: Little, Brown and Co., 1856) 10 volumes, Volume 6

Thomas Jefferson

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“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. Laws that forbid the carrying of arms laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.… Such laws make things worse for the assaulted and better for the assailants; they act rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Quoting Cesare Beccaria, On Crimes and Punishment

“No freeman shall be debarred the use of arms [within his own lands].” – Proposed Constitution for Virginia – Fair Copy, Section IV: Rights, Private and Public, June 1776; The Works of Thomas Jefferson, Federal Edition, Editor: Paul Leicester Ford, (New York and London, G.P. Putnam’s Sons, 1904-5); Vol. 2

“A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball and others of that nature are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.” – Letter to Peter Carr, 1785; The Letters of Thomas Jefferson: 1743-1826, Electronic Text Center of University of Virginia

“[W]hat country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.” – Letter to William Stephens Smith, November 13, 1787; The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5) Vol. 5

“The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen ; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.” – Letter to Justice John Cartwright, June 5, 1824; “The Writings of Thomas Jefferson,” Definitive Edition, Albert Bergh, editor (Washington, D. C.: Thomas Jefferson Memorial Assoc., 1904), Vol. XVI, p. 45

“We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.” – Letter to Major John Cartwright, Monticello, June 5, 1824; Writings of Thomas Jefferson, Albert Ellery Bergh, ed., 19 vol. (1905)

Thomas Paine

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“The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. And while a single nation refuses to lay them down, it is proper that all should keep them up. Horrid mischief would ensue were one half the world deprived of the use of them.” – Thoughts on Defensive War, 1775; The Writings of Thomas Paine, Collected and Edited by Moncure Daniel Conway (New York: G.P. Putnam’s Sons, 1894) Volume 1, Chapter XII

Patrick Henry

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“O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all?” – Speech in the Virginia Ratifying Convention, June 5, 1778; “Debates in the Several State Conventions on the Adoption of the Federal Constitution,” Jonathan Elliot, editor, vol. 3, pp. 50-53

“Are we at last brought to such humiliating and debasing degradation that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” – Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, ed. 1836, vol. 3, p.168

“The great object is, that every man be armed … Every one who is able may have a gun.”– Debates in the Several State Conventions on Adoption of the Federal Constitution, Jonathan Elliot, ed. 1836, vol. 3, p. 386

The Federalist Papers

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“If the representatives of the people betray their constituents, there is then no resource 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.” – Alexander Hamilton, Federalist No. 28, Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered (continued), Independent Journal, December 26, 1787; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001)

“A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with 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.” – Alexander Hamilton, Federalist No. 29, Concerning the Militia, Independent Journal, January 9, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001)

“… but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” – Alexander Hamilton, Federalist No. 29, Concerning the Militia, Independent Journal, January 9, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001)

James Madison 002

“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 and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” – James Madison, Federalist No. 46, The Influence of the State and Federal Governments Compared, New York Packet, January 29, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001)

Elbridge Gerry

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“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Floor debate over the Second Amendment, August 17, 1789; I Annals of Congress, p. 750

Noah Webster

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“Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. In spite of all the nominal powers, vested in Congress by the constitution, were the system once adopted in its fullest latitude, still the actual exercise of them would be frequently interrupted by popular jealousy. I am bold to say, that ten just and constitutional measures would be resisted, where one unjust or oppressive law would be enforced. The powers vested in Congress are little more than nominal; nay real power cannot be vested in them, nor in any body, but in the people. The source of power is in the people of this country, and cannot for ages, and probably never will, be removed.” – An Examination of the Leading Principles of the Federal Constitution, Philadelphia, October 10, 1787; Pamphlets on the Constitution of the United States, Published during Its Discussion by the People, 1787—1788, Paul Leicester Ford, editor; Brooklyn, 1888. Reprint, New York: De Capo Press, 1968

John Dickinson

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“With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live as slaves.” – Declaration of the Cause and Necessity of Taking up Arms, Second Continental Congress, July 6, 1775; The Growth of the American Republic, Volume 1, Seventh Edition. New York: Oxford University Press; 1980; p.168

Roger Sherman

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“(C)onceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made. The particular States, like private citizens, have a right to be armed, and to defend by force of arms, their rights, when invaded.” – Debates on 1790 Militia Act; Debates in the House of Representatives, editor Linda Grand De Pauw, (Baltimore, Johns Hopkins Univ. Press, 1972), 92-3

Tenche Coxe

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“The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. 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.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788

“Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as 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 article in their right to keep and bear their private arms.”– Writing as A Pennsylvanian, in Remarks on the First Part of the Amendments to the Federal Constitution; Philadelphia Federal Gazette, June 18, 1789, p. 2 col. 1

Zachariah Johnson, Virginia Statesman

“The people are not to be disarmed of their weapons. They are left in full possession of them.” – Speech in the Virginia Ratifying Convention, June 25, 1788; Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor, vol. 3, p. 646 (Philadelphia, 1836)

Quotes from Constitutional Commentators

Introduction

Quotes from St. George Tucker, William Rawle, Justice Story, and Thomas Cooley appear here.



St. George Tucker

The following is excerpted from The Right to Arms: Does the Constitution or the Predilection of Judges Reign? by Robert Dowlut (Copyright © 1983 Oklahoma Law Review).

Saint George Tucker (1752-1828) served as a colonel in the Virginia militia, was wounded in the Revolutionary War, was a law professor at William and Mary, and later was a justice on the Virginia Supreme Court from 1804 to 1811. He was also a friend of Thomas Jefferson. In 1803 he published a five-volume edition of Blackstone’s Commentaries on the Laws of England.

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To Blackstone’s listing of the “fifth and last auxiliary right of the subject … that of having arms … suitable to their condition and degree, and such as are allowed by law,” Tucker in a footnote added: “The right of the people to keep and bear arms shall not be infringed.” He cited the second amendment, noting that it is “without any qualification as to their condition or degree, as is the case in the British government.” He added: “Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” In discussing the second amendment, Tucker wrote:

“This may be considered as the true palladium of liberty …. The right of self defence 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. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour 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.”



Tucker thus merged self-defense, prevention of standing armies, and protection from oppression all into a single concept–the generalized right of keeping and bearing arms as protected by the second amendment.

More St. George Tucker from the appendix of Blackstone’s Commentaries on the Laws of England (1803),

“Here, let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States… Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people:…”

“The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;…”

“If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man’s own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act.”

William Rawle

In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He had also been George Washington’s candidate for the nation’s first attorney general, but Rawle declined the appointment. Rawle’s “A View of the Constitution of the United States of America” (1829), was adopted as a constitutional law textbook at West Point and other institutions. He describes the scope of the Second Amendment’s right to keep and bear arms. (Rawle’s comments quoted from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.)

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“the powers not delegated to congress by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people[quoting the 10th Amendment]. What we are about to consider are certainly not delegated to congress, nor are they noticed in the prohibitions to states; they are therefore reserved either to the states or to the people. Their high nature, their necessity to the general security and happiness will be distinctly perceived.” “In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.”

“The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.”

“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence 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.”

“In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,’suitable to their conditions, and as allowed by law.’ An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.”

Rawle stresses the importance of the militia as a safeguard against a standing army, but he is also clear in pointing out that the right of individuals to keep and bear arms, shall not be infringed, period, regardless of usage, as it was arbitrarily restricted by hunting laws in England.

Over time, it is the fusion of the militia clause and the broad scope of the right to keep and bear arms that has caused many people to misunderstand the Second Amendment. Many of the Founders and commentators were concerned about the militia, but this was never meant to restrict the right to keep and bear arms to military purposes only. Remember the prohibition against infringement was meant to be “general”

Joseph Story

Justice Joseph Story

Justice Story was appointed to the Supreme Court as an Associate Justice by James Madison in 1811. In 1833 he wrote, “Commentaries on the Constitution of the United States” His comments on the Second Amendment follow.

“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 defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) 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 burdens, to be rid.”

(1) 1 Tucker’s Black. Comm. App. 300; Rawle on Const. Ch. 10, p. 125; 2 Lloyd’s Debates, 219, 220.

[Tero]

“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Floor debate over the Second Amendment, August 17, 1789; I Annals of Congress, p. 750

That and all your quotes refer to a fear of the federal government. The militias were a way to keep the feds from coming to your state to push you around. The federal army navy etc were to keep invaders out from outside the borders. The feds coming to keep order in a state was not a task given to the federal government.

Some sort of leadership was assumed in the militias, a group effort.

Had anyone proposed federal controls on the individuals and their guns, they would have just laughed at it first. Then they would have put in legislation specifically guaranteeing individuals the right to bear arms, as well as the militias of the 2nd. But neither bans or permissions on this topic were passed. It was simply assumed the states would handle this. If a citizen was becoming a nuisance with their guns, local authorities would have acted on this. The sheriff would have been able to handle this on a case by case basis.

You can't apply English law to the US for the reason of duplicate Federal/State laws. In England there was no such thing, it was the citizen vs king, Magna Carta etc. In the beginning, the US federal power was minimal, there was no standing army, no FBI. You could easily argue that the FBI, ATF etc are illegal as the constitution gives no authority to challenge state governments and militias. The universal rights have to do with court cases, juries etc., but this was all state law. There were no federal crimes other than treason then.

[Seth]

“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Floor debate over the Second Amendment, August 17, 1789; I Annals of Congress, p. 750

That and all your quotes refer to a fear of the federal government.

No they don't. What part of "...governments mean to invade the rights and liberties of the people..." do you fail to understand. There's no restriction on what level of government might be involved. It could be the local county commissioners or sheriff right up to the Congress or the King of England.

The militias were a way to keep the feds from coming to your state to push you around.

Er, no, not really. In fact they were more intended to keep another state from coming into your state and pushing you around as well as a check on the federal government, which is why each state has its own militia.

The federal army navy etc were to keep invaders out from outside the borders.

Um, the idea was that the feds would have only a very small army and navy during peacetime, and if and when either external or internal threats presented themselves, the Congress would call up the state militias to federal duties. The Founders didn't want the federal government to have a large standing army.

The feds coming to keep order in a state was not a task given to the federal government.

Wrong again. If you doubt that, look up "the Whiskey Rebellion." While state governments were the first responders, Congress has always had the power to take control of state militia forces by "nationalizing" them and placing them under the command of federal army officers to respond to both external and internal threats.

Some sort of leadership was assumed in the militias, a group effort.

Indeed. State militias were to be organized by each state using officers appointed by the militias themselves, and ratified by the governor of the state.

Had anyone proposed federal controls on the individuals and their guns, they would have just laughed at it first.

Depends on what you mean by "federal controls." As I've told you, while the Congress, and the States through the 14th Amendment, cannot infringe on the right of the people to keep and bear arms in part so that they can, when required to do so by either state or federal authority, form a "well-regulated" (properly equipped and trained) militia, Congress absolutely has the power to "federally control" both individual arms and state regulation of individual arms as part of its plenary and supreme power to raise armies. Therefore the Congress has the power to do anything with respect to the right to keep and bear arms that enhances, protects or supports its ability to raise an army that does not have the effect of infringing on the right of the people to keep and bear arms suitable for that purpose. So, Congress can, by way of example, pass laws that: Require the issuance of military arms to civilians, require that civilians train with and keep those arms in operable condition, require civilians to report for militia training as Congress sees fit, ban any state or local regulation that interferes with the right of the people to keep and bear arms of a nature suitable for the use of the individual soldier (like machine guns, sawed-off shotguns, short rifles, hand grenades, etc.), and anything else that Congress deems will support and enhance it's plenary authority without infringing on the individual, non-militia related right to keep and bear arms for purposes OTHER THAN militia use.

Then they would have put in legislation specifically guaranteeing individuals the right to bear arms,

Nope. That legislation exists. It's call the "2nd Amendment" and it controls both Congress' and every state's and their political subdivision's powers to infringe on the right of each and every individual citizen to keep and bear arms of all types, including by inference those arms particularly suitable for military use.

as well as the militias of the 2nd. But neither bans or permissions on this topic were passed. It was simply assumed the states would handle this.

Er, the Constitution and the Bill of Rights are the supreme law of the land, to which all other laws, including state and local laws, are subordinate.

If a citizen was becoming a nuisance with their guns, local authorities would have acted on this. The sheriff would have been able to handle this on a case by case basis.

And this is, and has always been the case, in any instance where any person misbehaves with his or her arms in contravention of any criminal law enacted by either Congress or the states. What you don't seem to understand is that the authority of the sheriff and the courts to "infringe" on some particular individual's right to keep and bear arms is strictly limited to dealing with the acts of that individual which contravene one or more of the 50,000 gun control laws in the US. That does NOT mean that Congress, any state, any local sheriff or anyone else has any authority whatsoever to infringe on the RKBA of any person who has NOT committed a crime. That's called "prior restraint" and it's entirely unconstitutional, as Heller and McDonald clearly demonstrate.

You can't apply English law to the US for the reason of duplicate Federal/State laws.

I can compare and contrast the two, which is what I'm doing.

In England there was no such thing, it was the citizen vs king, Magna Carta etc.

Go read the Magna Carta, specifically the part about the "Rights of Englishmen" and the specific constraint on the King against disarming (particular) Englishmen. That England has violated its own Magna Carta isn't my problem.

In the beginning, the US federal power was minimal, there was no standing army, no FBI.

Exactly. And that's the way it was supposed to remain.

You could easily argue that the FBI, ATF etc are illegal as the constitution gives no authority to challenge state governments and militias.

Indeed I could so argue, and in fact I do argue exactly that because where the ATF authority infringes on individual gun rights it's flatly unconstitutional, which the government knows, which is why it constitutes most of what the ATF does as enforcement of TAX LAWS, not gun control laws. As for the FBI, it's only jurisdiction is over federal crimes, not state crimes. Of course what has happened in the intervening 230 years or so is that the Congress has created parallel federal criminal statutes to most serious state felonies that allow federal jurisdiction. That was never an intended power of Congress.

The universal rights have to do with court cases, juries etc., but this was all state law. There were no federal crimes other than treason then.

Correct.

That doesn't mean the 2nd Amendment doesn't prohibit both state government and the federal government from infringing on the individual right to keep and bear arms however.

It does.

[Tero]

I can compare and contrast the two, which is what I'm doing.

You are just denying the fact that the Militias was something the Federal and State governments had to agree on. It's history. The 2nd Amendment is just sorting these two powers. it is not part of personal rights (jury etc.)

Er, the Constitution and the Bill of Rights are the supreme law of the land, to which all other laws, including state and local laws, are subordinate.

Show me federal law in 1780-1790.

I thought so. There was no federal criminal law. Only economic.***

We can't use the 14th amendment to examine the thoughts of Founding Fathers. That's later.

***

The first meeting of the Supreme Court took place in 1790 on February 1. The first session lasted 10 days and was in New York City in the Royal Exchange building. During the 10 days of this session, a clerk was selected, several lawyers were admitted and a seal was chosen. No cases were chosen to be decided on during this time, and no cases were ruled on within the first three years. Fifty cases were decided on during the first 10 years.

Economic regulation was of prime concern in the Court between 1865 and 1937. This was due to the fact that many of the state and national laws became focused on monitoring the activities of various businesses. The more laws that came about, the more cases that came into the Courts to determine the cases constitutionality. Ever since 1937, the Court has had a main focus on civil liberties. The main two concerns were freedom of religion and freedom of expression.

and

During the colonial period prior to the American Revolution (1775–83), no distinctive American legal system existed. Criminal codes, punishments, and courts varied from colony to colony. By the mid-1700s a reform movement was underway to create a more unified American legal system. The Revolution greatly sped up the reform process. The colonists' victory over Britain brought independence and a new justice system that provided both protection and rights for its citizens. The first several decades following the Revolution were an experimental period in criminal justice as court decisions and legislation formed the foundation for a modern criminal justice system.

Read more: The Early Years of American Law - Colonial Freedom, Britain's Push For Greater Control, A New Start, A New Criminal Court System - JRank Articles http://law.jrank.org/pages/11900/Early- ... z3xB1OxKZ4

[Tero]

You might be stuck on the Bill of Rights concept. Not all of 1-10 Amendments deal will human rights. take the 10th:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

More on Virginia etc being obsessed with having their own militia. The fear of a federal standing army was what pushed the 2nd through.
http://www.secondamendmentinfo.com/Journal/

How these states ran therir militia was their own business. They could arm people and train them, and even reject some of the men.

[Seth]

I can compare and contrast the two, which is what I'm doing.

You are just denying the fact that the Militias was something the Federal and State governments had to agree on. It's history. The 2nd Amendment is just sorting these two powers. it is not part of personal rights (jury etc.)

The Supreme Court (among many others) says you're wrong, so you're wrong.

Er, the Constitution and the Bill of Rights are the supreme law of the land, to which all other laws, including state and local laws, are subordinate.

Show me federal law in 1780-1790.

Er, It's codified right there in a document we like to call "The Constitution of the United States." Specifically in this case in the Bill of Rights, 2nd Amendment.

If you don't think the Constitution is "federal law" you're an idiot.

I thought so. There was no federal criminal law. Only economic.***

So what? The "federal law" involved here is a law that prohibits Congress from infringing on the right to keep and bear arms. The other federal law is the one which gives Congress plenary powers to raise armies, which by rational inference prohibits the states from interfering with that power. That's what "plenary" means.

You mistakenly think that everything has to be written down affirmatively. It doesn't. In the case of the Constitution, when plenary powers are granted to Congress, those powers subsume all inferior powers of the states. The states, for example, cannot raise armies (militias aren't armies), coin money, ratify treaties or do any other thing granted as a power exclusively to the federal government.

We can't use the 14th amendment to examine the thoughts of Founding Fathers. That's later.

I've posted dozens of examples of the thoughts of the Founding Fathers that proves you're wrong. The 2nd Amendment does not specify Congress as the sole object of the law, as it does in the First Amendment, which explicitly says "Congress shall make no law..."

Neither the 2nd, nor the 4th, nor the 5th Amendments, among others, specifically and exclusively constrains only Congress. They are all formulated as protections of the rights of individuals against both federal and state trenchment.

[Tero]

In the first two American declarations of rights, armed populations capable of checking tyranny, establishing free government, and assuring continuation of a free state were declared to be the natural defense and the people’s right, respectively.

Same link.

The constitution gives you the right to keep arms at home FOR the purpose of checking tyranny. Period. Not for the purpose of defending yourself against home invasion. That was and IS state law.

[Seth]

You might be stuck on the Bill of Rights concept. Not all of 1-10 Amendments deal will human rights. take the 10th:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And you don't think that making the Constitution a charter of negative liberties that restricts Congress to only those powers explicitly granted to it isn't "dealing with human rights?" I was right, you are a idiot.

More on Virginia etc being obsessed with having their own militia. The fear of a federal standing army was what pushed the 2nd through.
http://www.secondamendmentinfo.com/Journal/

Indeed. But it was not JUST militias that were being protected.

How these states ran therir militia was their own business. They could arm people and train them, and even reject some of the men.

Of course they could, but that doesn't mean the protection granted to "the people" (not "the militia" or "the state") of their individual right to keep and bear arms is limited to their participation in the militia, which is exactly what the Founders said in their contemporary documents and arguments and which the Supreme Court affirmed (not created) in Heller and McDonald.

You see, the Supreme Court doesn't make law, it can only interpret laws passed by a legislature (which includes the Framers and the Ratifiers of the Constitution) to clarify what such laws mean. It can neither add to nor subtract from any law, it can only overturn provisions that are unconstitutional or uphold those that are not.

The fact that the 2nd Amendment is an individual right that is not connected to or predicated upon participation in a militia, and that it encompasses the right to keep and bear a handgun in one's home is not a newly created aspect, it's merely an overlooked or unexamined part of the right to keep and bear arms protected by the 2nd Amendment. It was not current opinion that swayed the Court to rule as it did in Heller and McDonald, it was compelling historical evidence from the Founders themselves, revealed after substantial and authoritative research by individuals and organizations intent on protecting the "original intent" of the 2nd Amendment that demonstrated to the Court that the original intent is as the Court ruled and is NOT as you would like it to be.

What that means is not that the Court "created" a new right, that right has always existed within the boundaries of the 2nd Amendment from the beginning, just as the "right to privacy" that the Court used to allow first-trimester abortion was "discovered" as an existing, but dormant or unexamined aspect of the Constitution.

Just because a law has not been enforced, or has been enforced in a particular but ruled unconstitutional manner (Dred Scott, anti-black anti-gun laws after the Civil War) in the past does not render that past interpretation or enforcement to be constitutionally valid. In legal fact it was NEVER constitutional. A law found to be unconstitutional has always been unconstitutional from the moment the Constitution was ratified and had been enforced in error ever since. "Common practice" as in "common law" does not outrank codified law, which includes the Constitution.

[Seth]

In the first two American declarations of rights, armed populations capable of checking tyranny, establishing free government, and assuring continuation of a free state were declared to be the natural defense and the people’s right, respectively.

Same link.

The constitution gives you the right to keep arms at home FOR the purpose of checking tyranny. Period. Not for the purpose of defending yourself against home invasion. That was and IS state law.

That's not what the Founders or the Supreme Court said, so you lose.

But it's nice of you to admit that there is a right to keep and bear military arms for the purpose of checking tyranny, which is ONE of the reasons the right is without the authority of Congress or the states to infringe upon.

[Tero]

Some more history of the federal/state conflict, of which the militias were a part and which you refuse to accept in the Bill of Rights. You only see it as individual/federal conflict.
http://usa.usembassy.de/etexts/gov/federal.htm

[Seth]

Some more history of the federal/state conflict, of which the militias were a part and which you refuse to accept in the Bill of Rights. You only see it as individual/federal conflict.
http://usa.usembassy.de/etexts/gov/federal.htm

Well, I said nothing of the kind actually. Federalism was indeed an important part of the constitutional structure of the United States and the states were indeed supposed to have substantial general powers that the federal government does, or is not supposed to have according to the original intent of the Founders.

And prior to the ratification of the 14th Amendment there was in fact dispute over to what extent the rights enumerated in the Bill of Rights controlled state actions. That's why the 14th Amendment was enacted in 1868. A large part of the rationale for doing so with respect to the BOR was to remove any doubt about whether or not freed slaves enjoyed the protections of the BOR.

And while it is true that the RKBA was not seen to apply to slaves prior to 1868, as slaves did not enjoy any civil rights in the first place, that is not an argument that the protections of the 2nd Amendment did not apply to every non-slave citizen. As I have demonstrated with their own words, protecting the RKBA was of supreme importance to the Founders, they having just been through a war over that very thing (in part).

The authority of a state to form a state militia was made explicit in 1792:

History

The Militia Acts were passed in response to the overwhelming U.S. losses at St. Clair's Defeat.[1] The Constitution permitted Congress to provide for calling forth the militia, but it was understood at the time that the president could not do so on his own authority absent that statutory provision. There was a widespread fear that the Western Confederacy of American Indians would exploit their victory during the recess of Congress. St. Clair's defeat was blamed in part on the poor organization and equipment of his army.[2] Congress took action to remedy these problems in 1792.
First Militia Act of 1792

The first Act, passed May 2, 1792, provided for the authority of the president to call out the militias of the several states, "whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe."[3] The law also authorized the President to call the militias into Federal service "whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act".[4] This provision likely referred to uprisings such as Shays' Rebellion. The president's authority in both cases was to expire after two years.
Second Militia Act of 1792
Front page of a newspaper announcing the second Militia Act of 1792.

The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every "free able-bodied white male citizen" between the ages of 18 and 45 into a local militia company. (This was later expanded to all males, regardless of race, between the ages 18-54)

Militia members, referred to as "every citizen, so enrolled and notified," "...shall within six months thereafter, provide himself..." with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gunpowder, 20 rifle balls, a shooting pouch, and a knapsack.[5] Some occupations were exempt, such as congressmen, stagecoach drivers, and ferryboatmen.

The militias were divided into "divisions, brigades, regiments, battalions, and companies" as the state legislatures would direct.[6] The provisions of the first Act governing the calling up of the militia by the President in case of invasion or obstruction to law enforcement were continued in the second Act.[7] Court martial proceedings were authorized by the statute against militia members who disobeyed orders.[8] Source: wikipedia

So, as we see, militias are not purely state organizations, they are in fact a mandate of Congress under it's authority to raise armies the organizing of which was delegated to the states. In other words, the states did not have the power NOT to form a militia because the Congress exercised its plenary powers and even under the concept of federalism the Congress still has the authority to dictate to the states within those spheres of Congressional authority granted by Article 1.

The Militia Acts did, as you see, command militia members, who were clearly defined, to provide their own arms, ammunition, powder and kit.

As I said before, it is within the power of Congress even today to make military arms ownership mandatory for all citizens who qualify for militia duty, and since that power is plenary (not limited at all by anyone, including the states) any state law that impairs that power in any way (like a ban on "assault weapons") is flatly unconstitutional not only under the 2nd Amendment but under Article 1, Section 8 of the Constitution.

So, while your scholarship is interesting and it's good to see you're actually doing some, you're still wrong. Keep trying though.

[Tero]

One of my previous links

Poring over the first-hand documents from 1789 that detailed the Fist Congress’ debate on arms and militia, you’ll see a constant theme: the 2nd Amendment was created to protect the American government.

The James Madison resolution on the issue clearly stated that the right to bear arms “shall not be infringed” since a “well-regulated militia” is the “best security of a free country.”
they refer to this
http://www.constitution.org/mil/militia_debate_1789.txt

Virginia -- SEVENTEENTH, That the people have a right to keep and bear arms;

that a well regulated Militia composed of the body of the people trained to

arms is the proper, natural and safe defence of a free State. That standing

armies in time of peace are dangerous to liberty, and therefore ought to be

avoided, as far as the circumstances and protection of the Community will

admit; and that in all cases the military should be under strict

subordination to and governed by the Civil power.

New York -- That the People have a right to keep and bear Arms; that a well

regulated Militia, including the body of the People capable of bearing Arms,

is the proper, natural and safe defence of a free State; that the Militia

should not be subject to Martial Law, except in time of War Rebellion or

Insurrection. That standing Armies in time of Peace are dangerous to

Liberty, and ought not to be kept up, except in Cases of necessity; and that

at all times, the Military should be under strict Subordination to the Civil

Power.

Whenever government mean to

invade the rights and liberties of the people, they always attempt to

destroy the militia, in order to raise an army upon their ruins. This was

actually done by Great Britain at the commencement of the late revolution.

They used every means in their power to prevent the establishement of an

effective militia to the eastward. The assembly of Massachusetts, seeing the

rapid progress that administration were making, to divest them of their

inherent privileges, endeavored to counteract them by the organization of

the militia, but they were always defeated by the influence of the crown.

Yes the Brits are there and tyranny is there, but the amendment was to do with a militia to prevent a standing army.

All the rest that you keep piling on to it is interpretation, especially the supreme court in the 1900s overinterpreting. The amendment has NOTHING to do with rights of individuals. That was a separate issue not addressed.

[Seth]

One of my previous links

Yes the Brits are there and tyranny is there, but the amendment was to do with a militia to prevent a standing army.

All the rest that you keep piling on to it is interpretation, especially the supreme court in the 1900s overinterpreting. The amendment has NOTHING to do with rights of individuals. That was a separate issue not addressed.

You're simply wrong, as I've shown many times. The purpose of the 2nd Amendment is to protect the right of the people, not the right of the government or the right of a militia, to keep and bear arms. That right is indeed essential to the security of a free state through the ability of an armed citizenry to form a militia at need because they are armed and cannot be disarmed by any government action, but as the Founders explicitly stated in the quotes I provided to you, that is not the only or exclusive reason the Founders chose to protect the individual citizen's RKBA. The right is broad and includes all "arms" that are, or may be used for lawful purposes including hunting and self-defense in addition to arms suitable for military use by militia members.

And that's exactly what the Supreme Court concluded was the case at the time the constitution was ratified in both Heller and McDonald.

You lose.

[Tero]

Black man exercising the misinterpreted (1900s) amendment