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
I wasn’t talking to you, and I wasn’t talking about that.
The addressee knew what I was referring to.
If I knew you were going to get involved, I’d have written a scholarly dissertation covering every tangent you could conceivably have pursued.
But I didn’t, so I didn’t.
Not only can’t you let it go, you seek out every crack you can wedge your issue into.
Please leave mine alone.
Read Muscarello. Why do you think the Second Amendment only justifies a right to self defense and bearing arms just for the militia?
Eh... watch him cite the 9th Circuit now... He’s done it before.
Fixed it for you...
read.
BTW, linky no worky.
Interesting confluence of circumstances there with the SCOTUS set to either restore, or destroy, the Second Amendment in March.
You’re quite right. Tench Coxe wrote several dissertations.
You wrote:
Then foreign visitors, 3-year-olds, and the insane have the right to keep and bear arms. Or did God exclude them when giving out His rights.
All the above have the right to life, and to defend themselves, though I hope that you agree that rights come with responsibilities, including the responsibility to respect the rights of others.
I believe that the 3-year-old does indeed have the right to defend him/herself using whatever means are necessary. However, a 3-year-old may not have the ability to do so, or to use a given weapon responsibly, due to physical limitations or immature judgment and reasoning capability. Because of this, the 3-year-old's parents are charged with end expected to uphold and exercise her right to life and to self defense in her stead and on her behalf until such time as she can demonstrate her ability to exercise her right to self defense responsibly and successfully.
Persons who have been adjudged to be mentally incompetent by due process, or those adjudged by due process to be a danger to (some or all of) the rest of us because of their previous actions, have forfeited some of their rights, such as liberty and the keeping and bearing of arms for such time as they are in the custody of the State for either punishment or for protection. In these cases, while their right to self defense has not been forfeit, their access to weapons has been limited (or is supposed to be, anyhow). Because of this, so as to keep them safe from themselves or from others, guards or other personnel are assigned to ensure that their other rights are not violated, and the State assumes the role much like the role parents assume for a child, that of protector and guarantor.
Visitors also have a right to life and to self defense. If we as a country were more careful and circumspect about just whom we allow into our country, such that we could reliably exclude those who can be shown to mean one or more of us harm by evidence of stated intent or previous action, or who can be shown to be incapable of exercising their rights with appropriate responsibility and respect for the rights of others, then I would place no restrictions on the remainder as far as keeping and bearing arms goes.
Your thoughts?
Just wishful thinking on my part.
I hear ya.
I would prefer a citation from a recognized dictionary, published circa 1791 to support his claim.
Is robertpaulson a NY lawyer?
You heard why NY got all the lawyers and NJ got all the toxic waste dumps didn't you?
Good luck. We’ve been trying for years to get him to behave.
Last I remember, Chicago. Possibly one of Blagojevich’s toadies. He stopped flying the Illinois flag a while back.
Correction... Looks like he’s got it set back to Illinois again.
“And if it’s a God-given inalienable right, like life or liberty, why isn’t it given to 3-year-olds ...”
God gives men balls too, but they don’t drop for twelve years or so.
I tried to copy from "Word" a more convenient link and the text from Muscarello to a FReepmail to myself. I was too smart by half. It became corrupted by extraneous punctuation marks which I had thought I checked and eliminated. Drat. Thanks for the correction.
It's pretty much how we came up with the whole concept of "age of majority". It only pertains to legal protection and has nothing to do with the argument. It's a red herring.
I admit with some embarassment that I wasn't aware of the contributions of Tench Coxe. I was alluding to The Federalist, and other better known writings by better known Founders. I just looked him up and scanned his biographical information. I also found this
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American...[T]he 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.
Thank you for broadening my knowledge.
Well do I know it! Most of the time I just lurk, shaking my head...
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