Posted on 12/12/2007 2:03:04 PM PST by neverdem
When the Bill of Rights was ratified this week (Dec. 15) in 1791, the Founders never dreamed that centuries later the Second Amendment would become so controversial. To them, “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,” was fairly straightforward language.
How wrong they were, as evidenced by the Supreme Court’s recent decision to rule on whether Washington, D.C.’s strict firearms law violates the Constitution, “a decision,” The Washington Post wrote, “that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections.”
The main controversy is over the phrase “A well regulated militia,” and its relationship to the statement “the people’s right to keep and bear Arms, shall not be infringed.” Gun-control advocates believe this language means that if you don’t belong to a “regulated militia” your right to own a gun can be “infringed.”
Gun-rights advocates counter by noting that the amendment does not grant a right; it recognizes a right already granted. The amendment does not say, “The people have the right to keep and bear arms.”
It says, “the (already established) right of the people to keep and bear Arms, shall not be infringed.” And they have a point. As even the Supreme Court has acknowledged, the right to own firearms precedes the Bill of Rights.
Gun advocates also note that because the amendment gives the right to bear arms to the “people,” not the states, claiming that this right is dependent on anything the states do or don’t do — including forming militias — is ludicrous. After all, the Bill of Rights mentions no specific rights that the states possess, but several the people do.
Two additional points: In 1791, most state militias did not give guns to militiamen when militias were formed. Militiamen brought their guns with them — from home. Indeed, the amendment says they can “keep” their firearms, not merely “bear” them during military service.
Finally, (my hero) James Madison’s original Second Amendment language was as follows: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.” Written that way, he is saying that if the people don’t have the right to arms, there can’t be a militia. That Congress reversed the order does not change Madison’s intent.
Granted, all constitutional rights, including free speech and gun ownership, are subject to reasonable restrictions — you can’t yell “Fire” in a crowded theater, and felons can’t possess firearms. But the general right to own firearms is constitutionally protected. We will see what the Supreme Court thinks.
Bruce Kauffmann’s e-mail address is bruce@history lessons.net
The same would be true for any other God-given inalienable right. If you insist that the right to keep and bear arms is a God-given inalienable right, then children also possess it.
The gun in the glove compartment? What about it?
The law read "uses or carries a firearm". The court determined that a gun in the glove compartment fit that description.
"Why do you think the Second Amendment only justifies a right to self defense and bearing arms just for the militia?"
Because that's what it clearly says? I don't understand your question.
You regulate the people, not the guns. And I think this works.
Require specific training and basic testing in handling the firearms, using them properly, etc. It must be reasonable and not intended to act as an artificial ban on people having firearms, but requiring certain basic competencies is reasonable. You wouldn't put a gun in the hands of Rainman or Mumia Abu-Jamal. Also require attendance at training on what the laws are regarding using the firearms, e.g. when you can and can't use one legally ("castle defense" vs. chasing down a guy who pissed you off on the highway). Finally require that the people get training in how they do and don't properly interact with police when problems happen.
The Militia, in this case IMHO, goes back to not only the military but the police responsibilities of government as well. They didn't have a "police force" in most of the country. They had the citizens and perhaps a local constable. Even in the cities of the time they wouldn't have had large police forces.
This is from the official history of the Philadelphia Police Department
By the year 1700, Philadelphia had increased its population to 4,400. As a result of this growth, the citizenry established a method of citizen participation known as "Town Watch." This system remained the basic form of police protection until 1751. In 1751, the General Assembly, in response to the needs of the citizenry, established the first paid police agency. This agency, comprised of wardens and constables, patrolled the city on a limited basis, usually stationed in "watch boxes." These men faithfully served the people of Philadelphia without losing a single officer to violence. Unfortunately, in 1828, Watchman Steve Heimer was the first Philadelphia peace officer to be killed in the line of duty.
Though it doesn't talk about how citizens would be involved after the founding of the PD, it is apparent it wasn't a large force. When trouble happened they would almost certainly get the able and willing citizens to act with them under their supervision. I recall several accounts in history books and historic novels of this sort of arrangement being not only sanctioned but expected. We've all seen the sheriff or policeman in a movie saying "come with me, men" and they pull out their guns or pick up some other weapon.
We can never have a large enough police force to provide any meaningful level of security for unarmed and helpless citizens without becoming a police state. We need a professional police to instruct and lead the armed citizens or risk them from becoming a mob of vigilantes.
THAT is what I think the binary nature of the second amendment means.
We have moved away from that model at our peril.
I should have written, "Read Silberman's citation of Muscarello."
We also note that at least three current members (and one former member) of the Supreme Court have read “bear Arms” in the Second Amendment to have meaning beyond mere soldiering: “Surely a most familiar meaning [of ‘carries a firearm’] is, as the Constitution’s Second Amendment (’keepand bear Arms’) and Black’s Law Dictionary . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,and Souter, J.) (emphasis in original). Based on the foregoing, we think the operative clause includes a private meaning for”bear Arms.”
Thanks for the excerpt & link.
Plus, the law in Muscarello had nothing whatsoever to do with the second amendment, or the right to keep and bear arms. The law dealt with the terms "carry" or "use". The question to the court was if a gun in the glove compartment constituted "carry". Why Ginsburg threw in that "bear arms" is a mystery to me.
sorry for the double post folks...(i am a retard with a keyboard)
So what? It only mattered to Silberman and the concurring opinion what and who "bear arms" meant. We're talking usage that didn't limit it to soldiers.
That's not under consideration. The only thing under consideration is whether the right is an individual one, and if 3 specific sections of the DC code violate it, if there is one. IIRC, none of the DC code sections concern either felons or the mentally ill.
The way they, the Supreme Court itself, worded the Question, it almost assumed there is an individual right. But that might be reading a bit too much into the wording... and maybe not. Time will tell, and not much of it at that.
07-290 DISTRICT OF COLUMBIA, ET AL. V. HELLER, DICK A. The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate 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?
7-2502.02 (a)(4) only allows possession of handguns registered in DC prior to 1976) 7-2507.02 requires guns to be disassembled and unloaded, even in ones own home), and 22-4504 prohibits carrying a pistol without a license. All apply to normal law abiding citizens.
Who cares (that much) about hunting? Many early state Constitutional provisions included bearing arms in "defense of self", which is not distinctly military. For example:
Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. Art. 1, § 21 (enacted 1790, art. IX, § 21). (Earlier version, 1776 said "That the people have a right to bear arms for the defence of themselves and the state")
Kentucky (1792): 1792: "That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned." Art. XII, § 23.
Connecticut: Every citizen has a right to bear arms in defense of himself and the state. Art. I, § 15 (enacted 1818, art. I, § 17) Cppied from:
Mississippi: "Every citizen has a right to bear arms, in defence of himself and the State." Art. I, § 23. (1817).
So maybe you should just drop the "military connotation only" in 1791, "stuff". It's been demonstrated to be false, many times.
A very old and smelly one at that.
However, the government is no one's parent. They are given no power to restrict our Rights. Doesn't matter if it's a local school board, a State legislature, or the Federal government...
Though I do not believe the inalienable right to defend oneself includes the use of a gun.
Well, Slim, that's where we differ. I believe that, if I have a right to defend my life, I have the right to use whatever means, tools or methods are available and necessary to achieve that goal, as long as I do not violate the rights of an innocent. I'm glad I don't have to rely on you to defend my life or my rights (though let me point out that I have sworn to risk my life defending yours).
You have a natural right to use whatever weapon you can get your hands on. But you have no God-given inalienable right to a full auto M4.
Nonsense. I have the God-given right to use WHATEVER means at my disposal to achieve that goal, as long as I do not violate the rights of innocents. Do you even realize how incongruent your arguments are?
You've lost me.
That's the understatement of the year.
Yet another un-cited assertion, robertpaulsen? One would think you'd have learned your lesson by now. Care to take a poll as to whether it is good enough for "everyone else"? I'll play. Will you?
Besides, you were simply wanting an assurance that I wasn't making it up. I gave you that assurance with the link.
What I wanted, and what I asked for is a matter of record, to be contrasted with your assertions herein. I'll let the record speak for itself.
The only assurance you offered was that yours was not an original thought, though that was not much of a surprise.
What's wrong with my cite? I stand by it unless you can tell me why it shouldn't be used.
I already told you, but since you seem to have reading or comprehension difficulties, I will repeat: I do not accept someone else's opinion. Instead, I desire an authoritative source, such as a dictionary published circa 1791, that supports your asserted definitions of "keep" and "bear".
Since you asserted to have authoritative definitions of these two words, circa 1791, why is this so difficult for you? Why do you obfuscate and redirect instead of offering proof? Could it be that you have been mislead, or that you are attempting to mislead? Surely not...
A bit off-topic, but this always "pushes a button" with me.
Next time I see a fire in a crowded theater, I'll just quietly leave without warning anyone and let them die.
I'm sure when the courts find me guilty of some sort of criminal negligence, "Bruce" will be willing to serve my prison sentence for me..
Some cliches are just plain stupid. The "fire in a theater" saying is one of them.
If there is indeed, a fire, you have a responsibility to warn the theater occupants of the danger.
And when people use this stupid argument, you all have a responsibility to jump down their throats and challenge them.
A lie, repeated often enough, becomes accepted as truth.
The fire in a theater argument is false, and a lie.
I now return you to your regular programming.
If they did, you might have a valid point.
But the term used was, "in defense of self and state". I interpret that as, in battle, the weapon was to be used to defend yourself and your country.
You're interpreting the phrase as though it reads, "in defense of self or state".
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