Bruce's History Lessons: The oh so controversial second amendment

Tribune-Star ^ | December 11, 2007 | Bruce Kauffmann

[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

[Dead Corpse]

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. -Tench Coxe, 20 Feb 1788

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution." Under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

[Sacajaweau]

Now, I’m going to grab an original 1787 newspaper in my personal library. I didn’t purchase it because of Coxe...but it sure would be nice to find an original publication by him. If there is one, I will quote it here in full.

[Dead Corpse]

http://www.davekopel.com/2A/LawRev/hk-coxe.htm

[Dead Corpse]

Here's another little jem from James Madison:

The difficulties which present themselves are on one side almost sufficient to dismay the most sanguine, whilst on the other side the most timid are compelled to encounter them by the mortal diseases of the existing constitution. These diseases need not be pointed out to you who so well understand them. Suffice it to say that they are at present marked by symptoms which are truly alarming, which have tainted the faith of the most orthodox republicans, and which challenge from the votaries of liberty every concession in favor of stable Government not infringing fundamental principles, as the only security against an opposite extreme of our present situation. I think myself that it will be expedient in the first place to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities. 2dly. Over & above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local Legislatures. Without this defensive power experience and reflection have satisfied me that however ample the federal powers may be made, or however Clearly their boundaries may be delineated, on paper, they will be easily and continually baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other, and even from oppressing the minority within themselves by papermoney and other unrighteous measures which favor the interest of the majority. - James Madison to Thomas Jefferson. Letters of Delegates to Congress: Volume 24 November 6, 1786-February 29, 1788

[An Old Man]

I wrote:

"Do you persist in these word games because you hate God or because we have the right to keep and bear arms?"

And the troll responded:

• "Word games? The U.S. Constitution and the U.S. Supreme Court treat rights differently depending on whether they are inalienable, fundamental, or natural.

• An inalienable right (like life, liberty or property) can only be taken by individual due process (ie., a court of law). It cannot be taken by a majority vote in the legislature.

  He not only didn't speak to the question, he posted illogical responses. Does anyone know what he is suffering from?

  Semper Fi
  An Old Man

[Alamo-Girl]

Thanks for the ping!

[Dead Corpse]

Does anyone know what he is suffering from?

Liberalism. Just a guess...

[robertpaulsen]

http://www.potowmack.org/garwills.html

About 1/3 of the way down he discusses 1) To bear and 2) To keep.

[aragorn]

I see I need to be more specific.

You claim to offer up definitions of words as they were defined and understood circa 1791.

To support your claim, I request that you provide the definitions of the words from a verifiable dictionary entry or another such authoritative linguistic source. I don't want a long discussion, or someone else's opinion, I want a dictionary definition. After all, you assert that "words mean things", and you further make claims as to what those words meant circa 1791. So, let's see some proof.

[robertpaulsen]

I don't disagree if you were talking about rights in general or even fundamental rights secured by the Bill of Rights. We may reasonably regulate them through legislation.

But the poster claimed the right to keep and bear arms was an inalienable right -- like the right to life, liberty, or property. An inalienable right may only be taken away with individual due process (ie., a court of law).

If a foreign visitor had an inalienable right to keep and bear arms, the only way to deny him that right would be in a court of law -- and that decision would only apply to him.

But we deny ALL foreign visitors the right to keep and bear arms via legislation, not a court order. It cannot, therefore, be an inalienable right.

That was the point I was trying to make.

[loboinok]

Come on, define “infringement.”

The intransitive verb is encroach

en·croach (ěn-krōch') Pronunciation Key intr.v. en·croached, en·croach·ing, en·croach·es

• 1. To take another's possessions or rights gradually or stealthily: encroach on a neighbor's land.
• 2. To advance beyond proper or former limits: desert encroaching upon grassland.
• 3. Football To commit encroachment.

transitive verb : to encroach upon in a way that violates law or the rights of another ; especially : to violate a holder's rights under (a copyright, patent, trademark, or trade name) intransitive verb : ENCROACH —in·fring·er noun

Of course, as you know, proper definition means little to the SCOTUS.

[robertpaulsen]

"I see I need to be more specific."

Perhaps. But I see no such need.

You asked for my source to show that this was not some "proof by assertion". That I wasn't "making it up". Well, I gave that to you. Now you say that's not definitive enough? Not exactly what you were looking for?

Too bad. I can't please everyone. Certainly if you can disprove my source or if you can find something contrary to my assertion, I'd love to see it.

That would, however, require YOU to actually do some research, rather than sending me to do it.

[aragorn]

As a living being, I claim to have the right to life, and the right to defend my life using whatever means I find necessary and at my disposal. I claim that those rights are inalienable. Someone can try to take my right to life away from me, and they may even succeed, but that changes nothing (though one of us is likely to die in the attempt).

Do you agree that every living thing has the right to remain living, to defend itself, even though it may not have the ability to enforce that right? Some forms of plant life attempt this via various means, including mechanical and chemical. May forms of animal life will fight to the death when cornered, or use chemical warfare. A single ant may be unable to stop one from stepping on it and killing it, but several thousand fire ants may change the equation. We can go on, but I hope you get my point.

Continuing from there, as a human being skilled at the use of tools to solve problems, it seems obvious to me that I have the right to keep and bear whatever tool I may find necessary or expedient in protecting (in this case) my right to life. If I choose a firearm, it is in no way a concern of anyone else, unless or until I use my weapon to violate the rights of another.

The fact that some court or king or group of people have, in recent or distant history, conspired to try to infringe on or deny entirely a person's inalienable right does not make that right less so. It only proves that there are people out there willing to take rights away from folks who may not be willing to die defending them, or whom are willing to give their rights up in exchange for something else. The fact that due process is not followed in all cases should not be held up as anything but an embarrassment.

[aragorn]

Nice try at redirection, but as we say around here: "that dog won't hunt".

I requested (twice) a cite from a recognized, authoritative source, such as a dictionary. I even explained what I meant by that in case you had trouble understanding.

Instead, you offer someone else's opinion and claim that should be good enough.

As the one who makes the assertion, it is up to you to back up your claim, not me to disprove it. I see that you cannot.

This, or course, calls into question all the other assertions that you have and will continue to make. Looks to me like you just make stuff up out of whole cloth when it suits your purpose.

Kinda funny, really.

[robertpaulsen]

"Do you agree that every living thing has the right to remain living, to defend itself, even though it may not have the ability to enforce that right?"

Yes. Though I do not believe the inalienable right to defend oneself includes the use of a gun.

"Continuing from there, as a human being skilled at the use of tools to solve problems, it seems obvious to me that I have the right to keep and bear whatever tool I may find necessary or expedient in protecting (in this case) my right to life. If I choose a firearm, it is in no way a concern of anyone else, unless or until I use my weapon to violate the rights of another."

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.

"The fact that due process is not followed in all cases should not be held up as anything but an embarrassment."

Perhaps you can point out an instance where it was required but not followed. You've lost me.

[GOPJ]

Thanks for the ping.

[GOPJ]

Yeah, I’m sure the Founders didn’t understand the need for a man to own a gun - the country was wilderness, wild animals everywhere, and people lived hours and days from hospitals and police stations... They’d never see the need for a man to protect his family.../s

[Cacique]

ping

[robertpaulsen]

"Instead, you offer someone else's opinion and claim that should be good enough."

Why isn't it? It's probably good enough for everyone else on this forum.

Besides, you were simply wanting an assurance that I wasn't making it up. I gave you that assurance with the link.

"it is up to you to back up your claim"

I did! What's wrong with my cite? I stand by it unless you can tell me why it shouldn't be used.

Otherwise, this crap can go on all night -- I give you a link, you say no good, I give you another, you say no good, I give you another ...

[SoCal Pubbie]

More tastefully put than I chose to express it, but the idea that kids can exercise all the rights of adults, as adults, is crazy on its face, imho.