Posted on 01/28/2008 8:39:17 AM PST by kiriath_jearim
The case of District of Columbia et al v. Dick Anthony Heller has put the question of the Second Amendment before the Supreme Court for the first time in more than half a century. In an amicus brief filed with the Court 15 historians argue that the DC law is consistent with the Amendment's history. An excerpt of the brief appears below.
Click here to read the full brief.
http://www.gurapossessky.com/news/parker/documents/07-290tsajackn.rakove.pdf
INTRODUCTION AND SUMMARY OF ARGUMENT
The central question is whether the Second Amendment protects a private right to keep handguns and other firearms, independent of an individual’s membership in a state-regulated militia. As a problem for constitutional historians, the question can be elaborated and restated in this way: Did the framers and ratifiers of the Amendment believe they were constitutionally entrenching an individual right to keep arms for personal protection? Or did they conceive the Amendment to achieve a different end, by affirming that a “well-regulated militia” of citizen-soldiers would preserve “the security of a free state,” principally by lessening the need for a republican government to depend on a standing army?
Historians can best assess these claims by reconstructing the context within which the adopters of the Amendment acted. Recovering that context involves more than snatching a line from Blackstone’s Commentaries or Madison’s 46th Federalist, or ringing endless changes on the references to hunting and fowling in the Dissent of the Anti-Federalist minority in the Pennsylvania ratification convention. It instead involves explaining how a popular right to keep and bear arms figured in the ratification debates of 1787-1788; how that debate was in turn shaped by the Militia Clause of Art. I, §8; and why that clause appeared to threaten key Anglo-American political ideas dating to the Glorious Revolution of 1688-1689. Setting the context for the Second Amendment also requires exploring analogous provisions in the parliamentary Bill of Rights of 1689 and the declarations of rights that accompanied the first state constitutions.
Once explored, this context establishes that the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789. Though Anglo-American political tradition did indeed value the idea of an armed populace, it never treated private ownership of firearms as an individual right. The right stated in the seminal English Bill of Rights of 1689 vested not in individuals but in Parliament, which remained free to determine “by law” which Protestant subjects could own which weapons and how they could be used. Nor did the first American constitutions and declarations of rights include clauses protecting private use of firearms.
The right to keep and bear arms became an issue in 1787-1788 only because the Constitution proposed significant changes in the governance of the militia, an institution previously regulated solely by state law. Anti-Federalists argued that Congress would abuse its proposed authority to organize, arm, and discipline the militia by allowing that venerated institution to atrophy from neglect and lack of funding. A national government that could command permanent armed forces with its own resources would gain an engine for tyranny. Republican political thinking had long regarded standing armies as a danger to liberty, and a militia of citizen soldiers as one of its greatest bulwarks. Anti-Federalists rehearsed these arguments, and several ratification conventions—notably Virginia and New York—adopted resolutions affirming that the right to keep and bear arms, when tied to service in the militia, merited constitutional protection. Nothing in the ratification debates of 1787-1788, however, indicated that the exercise of this right required limiting the customary police powers of state and local government.
Federalist supporters of the Constitution dominated the First Congress that met in the spring of 1789. In framing the Second Amendment, they simultaneously sought to assuage the expressed Anti-Federalist concern about the maintenance of the militia while preserving congressional authority over its organization, arming, and discipline. They rejected language that would have modified that authority, including a qualifying provision, proposed by the House of Representatives, defining the militia as “composed of the body of the people.” Acceptance of that definition would impair congressional authority to determine how extensive membership in the militia should be.
Nothing in this argument challenges the idea that eighteenth-century Americans had ready access to firearms, or that they valued the concept of a well-armed citizenry. Individuals were legally free to purchase and keep weapons as they could other property; but like other forms of property, the keeping of firearms was subject to extensive legal regulation. What is at dispute is whether legal rights of private ownership were what the Second Amendment constitutionally entrenched. During this period, Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury, or freedom of conscience, or the natural rights to life, liberty, and property. The fact that references to the keeping of firearms are so few and terse, or that the modern academic controversy over the Second Amendment has been forced to squeeze so much modern interpretive blood from so few evidentiary turnips, is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order. That was the subject that was patently in dispute in 1787-1789, and that is why the exceptional preamble to the Second Amendment is a true guide to its original meaning.
ARGUMENT
Even after the parliamentary Bill of Rights of 1689 allowed certain classes of Protestant subjects to keep arms, British constitutional doctrine and practice subjected the limited right therein recognized to extensive legal regulation and limitation.
The closest English antecedent to the American notion of a right to bear arms appears in the Bill of Rights, the parliamentary reenactment in December 1689 of the Declaration of Rights that the new monarchs, William and Mary, accepted seven months earlier after the Glorious Revolution forced James II to vacate his throne. Knowledgeable Americans were familiar with the Bill of Rights and the circumstances of its creation. Americans saw the English document as part of a common constitutional tradition, a binding pledge by the Crown to acknowledge the legal supremacy of Parliament and thereby respect the rights of the people.
That link between parliamentary supremacy and popular rights is critical to understanding the import of Article VII of the Bill of Rights, which provided “That the Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.” The formal grievance that Article VII answered was that James II had violated settled law “By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Bill of Rights (1689) reprinted in 5 The Founders’ Constitution 1-2 (Philip Kurland and Ralph Lerner, eds. 1987). The authors of the Bill of Rights were reacting to the efforts of Charles II and James II to maintain Stuart rule through a standing army increasingly officered and manned by Irish Catholics. Commissioning Catholics as military officers did indeed violate the Test Act, which required officeholders to swear an oath denying Catholic doctrine on transubstantiation. In the paranoiac atmosphere of the 1680s, James’s open practice of Catholicism and the birth of his male heir made the fear of a Catholic restoration all the more ominous.
The arms-bearing right that the Bill of 1689 affirmed, then, was a response to this specific situation, tied to the belief that an armed Protestant population would safeguard the realm against a Catholic restoration. It did not establish a general right of all persons to keep weapons, and especially firearms, for purposes of individual defense. An earlier version of Article VII could be read to grant the right to all Protestants. But that expansive possibility was checked when the House of Lords added the crucial qualifying language, “Suitable to their Condition and as allowed by Law.” (Lois Schwoerer, To Hold and Bear Arms: The English Perspective 76 Chicago-Kent L Rev. 30-48 (2000). The first qualification tracked a long history of legislation making the possession of weapons, and again especially firearms, dependent on the holders’ social and economic status. The second qualification was a reference to the Game Law of 1671, which allowed lords of manors to appoint gamekeepers to “take and seize all such guns” used by “divers disorderly persons” to hunt and trap “game intended to be preserved” for the higher classes of English society. 6 English Historical Documents 466-467 (Andrew Browning, ed., 1988). Adoption of the Bill of Rights did not affect Parliament’s capacity to regulate who could or could not possess firearms. In fact, when a new Game Act was adopted in 1693, the House of Commons rejected (169-65) a proposal allowing “every Protestant to keep a musket in his House for his defence not withstanding this or any other Act.” Many members voting had sat in Parliament in 1689; they evidently did not read Article VII as establishing a broad-gauged right all Protestants could claim. Schwoerer, Hold and Bear Arms, supra at 50-51.
The notion that Article VII made ownership of firearms a fundamental right immune to substantive regulation fails for a broader reason. The lasting constitutional significance of the Bill of Rights was not only to identify certain rights of the subject that merited protection, but also to lay down the basic premises that shaped British constitutionalism thereafter: that the monarch could not make law simply by royal edict, but that he must rule lawfully, with the consent of Parliaments freely elected and frequently assembled. The concept of parliamentary supremacy, as exercised through the king-in-Parliament, was the great principle the Bill of Rights vindicated. The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula “according to law” made clear, this imposed no limit on the reach of parliamentary power.
That understanding also informed a much-cited passage from Sir William Blackstone’s Commentaries (1765). “The fifth and last auxiliary right of the subject . . . is that of having arms for their defence, suitable to their condition, and such as are allowed by law,” Blackstone wrote, citing the Bill of Rights. This was “indeed, a publick allowance under due restraints, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 William Blackstone, Commentaries *139. Notwithstanding the reference to “self-preservation,” this passage cannot be construed to assert an unregulated private right of self-defense, for two reasons. First, Blackstone’s corpus of five “subordinate” or “auxiliary” rights involve the subject’s relation to public authority, respectively through the constitution of Parliament; the limitation on royal prerogative; access to courts of justice; the right to petition; and finally, the right to arms as a security against oppression. Id. at *136-139. Second, the phrases “suitable to their condition, and such as are allowed by law,” and “under due restraints” denote the regime of parliamentary regulation that the Bill of Rights made the fundamental principle of British constitutionalism. Blackstone was an unequivocal defender of that regime. “So long therefore as the English constitution lasts,” Blackstone wrote in the very next chapter, “we may venture to affirm, that the power of parliament is absolute and without control.” Id. at 157. Whatever principle the Bill of Rights stated always lay within the power of Parliament to apply and regulate, and thus to modify or limit. In this sense, the Bill of Rights did not establish a catalogue of rights in the modern, positivist, constitutionally-entrenched sense of the term. Like the clauses of Magna Carta, all of its provisions were subject to modification, control, and repeal by subsequent Parliaments. So long as Parliament sat, Blackstone envisioned no situation under which the auxiliary right of resistance could be invoked. ...
Because you ain't gonna outflank or outgun them!
Seriously, everyone should have the ability to 'go mobile' if the situation requires it.
A good surplus ALICE pack on eBay with frame can be had reasonably cheap. Pack it with a med kit, food, water filter and sidearm at least. Should be sitting in a closet or vehicle ready to roll.
“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.”
Perhaps if they had shown us some character that instilled faith and trust we might be different.
“Experience and treachery will beat youth and vigor every damn time.”
The Second Amendment
The Right to a Free Press
Who in turn would make Vonetta Ecks seem skilled, competent and professional.
Oh I will
I’ll leave toys, though.
Actually, some of the State Constitutions make it clear that the right to keep and bear arms is an individual right and includes the right to use those arms for self defense. Maybe those are the half that will not write new legislation.
I thought they ignored the argument. Can you please point out where the Miller court disagreed?
Why?
The Seventh Amendment protects individuals in DC but does not protect individuals throughout the nation. The Grand Jury clause of the Fifth Amendment protects individuals in DC but does not protect individuals throughout the nation.
Federalism died in the push for Nationalism. Replacing it with Statism isn't going to help very much.
Much like California's medical marijuana initiatives. They can make laws, but the FedGov will exert its power even absent legitimate authority.
Imagine Waco/Ruby Ridge enacted over and over again...
Nope. They’re delighted to know where to go to pick up what they need when travelling to their annexed province of Azltan.
“Any particular reason we should use the English examples of laws when they are the very people that we fought in order to gain our freedom???”
That was my thought?????
Had they agreed with the argument, they had a duty to say so. They are in the business of providing decisions that lower courts can use as FINAL legal guidance in the case at hand, in so far as they have the information to do so.
To suggest that the militia membership of Miller and Layton was going to be an issue at some later time is to suggest that the legal system works other than the way it does.
I know that I am completely incapable of convincing you that federal infringement of the right of the people to keep and bear arms is prohibited with respect to persons in DC as well as in the various states.
As far as I am concerned, the Seventh Amendment should be applied to all suits, just as the amendment says. Feel free to make the case that the Founders ratified the Second Amendment to protect the right to keep and bear arms of a tiny fraction of the people of the United States.
Even under your tortured interpretation that the Second Amendment protects the right of the states to form "well-regulated" militias, it certainly must be the case that the Second Amendment is not limited in its scope to just the people of DC.
But they had no such duty if they disagreed?
"To suggest that the militia membership of Miller and Layton was going to be an issue at some later time"
The court didn't even know if this was a Militia-type weapon! Why in the world would they concern themselves with Militia membership?
Correct. It only prevents the federal government from infringing on the right to keep and bear arms of individuals who are part of a well regulated Militia -- independent of where they reside.
"As far as I am concerned, the Seventh Amendment should be applied to all suits"
Your preference has been duly noted.
"Feel free to make the case that the Founders ratified the Second Amendment to protect the right to keep and bear arms of a tiny fraction of the people of the United States."
At the time, it was about 20% of the population.
"it certainly must be the case that the Second Amendment is not limited in its scope to just the people of DC."
I don't believe it protects the people of DC unless they're members of a well regulated Militia.
You can't claim that the idea that militia membership was required didn't occur to the Court, since the prosecutor included it in his summary. Somehow you can see that, if the weapon is not protected, then militia membership is irrelevant.
Why are you unable to see that, if only militia membership is protected, then the particular weapon is irrelevant? No further evidence was required by the Court if that was their opinion and they had a duty to include such guidance. If the Court "disagreed" but somehow made a majority decision which did not include miltitia membership, then militia membership IS NOT REQUIRED. Anything else would be a DIFFERENT decision and would not be a part of the Miller decision.
The Court was aware of both issues and had a duty to guide the trial court. Their decision was that Miller and Layton need not be in a militia to win an acquittal.
We've been over this material in great detail in the past. You persist in your error because you fail to realize that the Court was responsible for guiding the trial court with respect to ALL relevant issues. An acquittal of Miller and Layton COULD NOT be appealed by the prosecutor.
Most of us know your opinion. I will be absolutely amazed and shocked into disbelief if the Roberts Court comes anywhere near a decision which fails to support an individual right.
Obviously, Militia membership was irrelevant to the court.
You seem to forget the charges in this case. Miller was NOT charged with carrying an illegal weapon. He was NOT charged with carrying a weapon that only Militia members are allowed to carry. He was charged with interstate transportation of a weapon without the required tax stamp.
The only question before the Miller court was whether the tax stamp requirement was constitutional under the second amendment. The lower court believed the second amendment protected ALL weapons and ruled the tax stamp requirement unconstitutional. The Miller court implied that only Militia type weapons were protected by the second amendment.
"you fail to realize that the Court was responsible for guiding the trial court with respect to ALL relevant issues."
Be that as it may, they didn't. As the First Circuit Court said in US v. Cases (regarding the Miller decision), "The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go."
You mean "an individual right outside of a well regulated Militia".
I give it 50-50. As I said before, if the U.S. Supreme Court had refused to hear the case, the "individual fundamental right" decision by the DC Circuit would have stood. Since they took the case, what more do you think they'll add? Seriously.
Even the administration is urging the U.S. Supreme Court to scratch out "fundamental", thereby subjecting gun laws to only a rational basis review.
We had it all, and people like you were not happy and wanted a showdown. Well, you got one. And look what's happening.
I say it's even possible that the U.S. Supreme Court could conclude handguns do not bear a reasonable relation to the preservation or efficiency of a well regulated militia and are, therefore, not protected under the second amendment. That's what the Seventh Circuit Court said in Quilici v. Morton Grove in 1982.
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