Posted on 05/12/2002 4:10:21 AM PDT by The Raven
TANFORD, Calif. — The Bush administration has found a constitutional right it wants to expand. Attorney General John D. Ashcroft attracted only mild interest a year ago when he told the National Rifle Association, "The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Now, briefs just filed by Solicitor General Theodore Olson in two cases currently being appealed to the Supreme Court indicate that Mr. Ashcroft's personal opinion has become that of the United States government. This posture represents an astonishing challenge to the long-settled doctrine that the right to bear arms protected by the Second Amendment is closely tied to membership in the militia.
It is no secret that controversy about the meaning of the amendment has escalated in recent years. As evidence grew that a significant portion of the American electorate favored the regulation of firearms, the N.R.A. and its allies insisted ever more vehemently that the private right to possess arms is a constitutional absolute. This opinion, once seen as marginal, has become an article of faith on the right, and Republican politicians have in turn had to acknowledge its force.
The two cases under appeal do not offer an ideal test of the administration's new views. One concerns a man charged with violating a federal statute prohibiting individuals under domestic violence restraining orders from carrying guns; the other involves a man convicted of owning machine guns, which is illegal under federal law. In both cases, the defendants cite the Second Amendment as protecting their right to have the firearms. The unsavory facts may explain why Mr. Olson is using these cases as vehicles to announce the administration's constitutional position while urging the Supreme Court not to accept the appeals.
The court last examined this issue in 1939 in United States v. Miller. There it held that the Second Amendment was designed to ensure the effectiveness of the militia, not to guarantee a private right to possess firearms. The Miller case, though it did not fully explore the entire constitutional history, has guided the government's position on firearm issues for the past six decades.
If the court were to take up the two cases on appeal, it is far from clear that the Justice Department's new position would prevail. The plain text of the Second Amendment — "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" — does not support the unequivocal view that Mr. Ashcroft and Mr. Olson have put forth. The amendment refers to the right of the people, rather than the individual person of the Fifth Amendment. And the phrase "keep and bear arms" is, as most commentators note, a military reference.
Nor do the debates surrounding the adoption of the amendment support the idea that the framers were thinking of an individual right to own arms. The relevant proposals offered by the state ratification conventions of 1787-88 all dealt with the need to preserve the militia as an alternative to a standing army. The only recorded discussion of the amendment in the House of Representatives concerned whether religious dissenters should be compelled to serve in the militia. And in 1789, the Senate deleted one clause explicitly defining the militia as "composed of the body of the people." In excising this phrase, the Senate gave "militia" a narrower meaning than it otherwise had, thereby making the Ashcroft interpretation harder to sustain.
Advocates of the individual right respond to these objections in three ways.
They argue, first, that when Americans used the word militia, they ordinarily meant the entire adult male population capable of bearing arms. But Article I of the Constitution defines the militia as an institution under the joint regulation of the national and state governments, and the debates of 1787-89 do not demonstrate that the framers believed that the militia should forever be synonymous with the entire population.
A second argument revolves around the definition of "the people." Those on the N.R.A. side believe "the people" means "all persons." But in Article I we also read that the people will elect the House of Representatives — and the determination of who can vote will be left to state law, in just the way that militia service would remain subject to Congressional and state regulation.
The third argument addresses the critical phrase deleted in the Senate. Rather than concede that the Senate knew what it was doing, these commentators contend that the deletion was more a matter of careless editing.
This argument is faulty because legal interpretation generally assumes that lawmakers act with clear purpose. More important, the Senate that made this critical deletion was dominated by Federalists who were skeptical of the militia's performance during the Revolutionary War and opposed to the idea that the future of American defense lay with the militia rather than a regular army. They had sound reasons not to commit the national government to supporting a mass militia, and thus to prefer a phrasing implying that the militia need not embrace the entire adult male population if Congress had good reason to require otherwise. The evidence of text and history makes it very hard to argue for an expansive individual right to keep arms.
There is one striking curiosity to the Bush administration's advancing its position at this time. Advocates of the individual-right interpretation typically argue that an armed populace is the best defense against the tyranny of our own government. And yet the Bush administration seems quite willing to compromise essential civil liberties in the name of security. It is sobering to think that the constitutional right the administration values so highly is the right to bear arms, that peculiar product of an obsolete debate over the danger of standing armies — and this at a time when our standing army is the most powerful the world has known.
Jack Rakove is a professor of history and political science at Stanford Uni versity and the author of ``Original Meanings: Politics and Ideas in the Making of the Constitution.''
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Naturally, Jackie Baby was one of the "Historians In Defense of the Constitution", a crowd of mostly Commie "historians" who stuck their oar in the water during the impeachment wars to propagandize for the former Perjurer-In-Chief.
Can you believe that this Commie actually teaches American Revolution history? Gag!
"If Mr Rakove is no more impartial in his classes, I'm not sure I'd want to study with him. He states categorically that in United States v. Miller (1939) "[SCOTUS] held that the Second Amendment was designed to ensure the effectiveness of the militia, not to guarantee a private right to possess firearms." This is what is known as 'spin', aka 'a half-lie'. Possibly even 'heavy spin', aka 'a three-quarter lie'.
In fact, the issue in Miller was whether possession of a sawed-off shotgun was protected by the Second. At the time, sawed-off shotguns had no apparent military or 'sporting' use, so the court found against the possessor. 'Ensure the effectiveness of the militia' didn't come into it."
Mr.M
Huh?
The left is wrong period. Conservatives has been consistent for over 200 years. It is as it reads...no interpretation needed. If you want to change it...pass an amendment.
I'll buy that...
What diploma mill did this cretin buy his history degree from? Or did he just print one out himself. He's even wrong about Miller in 1939,and that is common knowledge. This leaves us all with no choice but to believe he knows he is lying and distoring history,and as such he has no right to the public money. He should be fired and have his teaching degree revoked.
Socialism is a thing of the past. We are heading towards fascism,with governement to be replaced by corporations.
Huh??
The short definition is that fascism is communism with a public profit motive for the rulers. It's still a police state,but the people have more comfortable lives,and the leaders don't have to hide their wealth and greed. Under either system the system "owns" you,and you live where you are told,and work where you are told.
Funny. That's not what it says.
The Second Ammendment doesn't transfer a damn thing to anyone. It demands that authority doesn't screw with what we already have , and have had from the beginning of time.
Rakove: "...Second, it would be difficult to identify any clause of the Constitution more open to the common sense objection that its modern interpretation should not be rooted in the concept of "original intent" or "original understanding," simply because firearms are now far more devastating than anyone in the eighteenth century could have plausibly imagined."
Thirdly, it would be difficult to identify any clause of the Constitution more open to the common sense objection that its modern interpretation should not be rooted in the concept of "original intent" or "original understanding," simply because free speech, via the Internet, can now be far more devastating than anyone in the eighteenth century could have plausibly imagined. ;-)
Excerpt:
144 The Distinction between the National Guard and the constitutional Unorganized Militia
Most Americans today believe that the National Guard is the Militia reserved to the states in the State Constitutions and the Constitution of the United States of America.
Nothing could be further from the TRUTH. The National Guard did not exist from the beginnings of the Republic until 1903 when it was instituted and created by Congress as the Act of January 21, 1903, known by the name of its sponsor as "The Dick Act".
In 1982 the Senate Judiciary Committee Sub-committee on the Constitution stated in Senate Document 2807:
"That the National Guard is not the 'Militia' referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).
Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States."
All the arms, munitions, armament and equipment of the National Guard is owned and controlled by the federal government, not by "the people" as clearly stipulated in the last phrase of the Second Amendment.
Title 10 U.S.C. 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
144b In the Colonial Declaration of Rights of October 19, 1765 it was complained that Kings had disarmed the people. Of course the colonists were by force of early circumstances bearers of arms. This prohibition upon the Nation means that it can never interfere with the people who make the militia of the States; and that therefore the States will always have the means to check by physical force any usurpation of authority not given to the Nation by the Constitution.
144c This right already existed. Maryland and Virginia had such provisions in their constitutions when the Constitutional Convention sat, as do all States at this time. These are prohibitions binding upon the States to preclude infringement of this right of the people by each of the individual States. State constitutions and laws may have conditions established which govern, but any conditions which are in opposition to this amendment are nullities and void. From the Father of the Constitution himself, the words of James Madison . . .
"The proposition of amendment made by Congress, is introduced in the following terms. "The Convention of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institutions."
Here is the most satisfactory and authentic proof, that the several amendments proposed were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the States, and as extending the ground of public confidence in the government.
Under any other construction of the amendment relating to the [right to keep and bear arms], than that it declared the [right to keep and bear arms] to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the States, nor be calculated to extend the ground of public confidence in the government." --- James Madison, REPORT OF 1799 on the Kentucky-Virginia Resolutions
The Founders of our Nation and the Framers of the Constitution were well aware of the dangers of the tyranny and treason of a run-away governmental bureaucracy and had a very PRIMARY reason for the inclusion of the Second Amendment to the Constitution. We shall let them speak for themselves:
"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that's good." -- George Washington, Commanding General of the Continental Army, Father of Our Country and First President of the United States, Address to the 2nd Session, 1st Congress, 1789.
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in Government." -- Thomas Jefferson, Author of The Declaration of Independence, and President of the United States.
"The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. -- James Madison, principal author of Constitution, principal writer of The Federalist Papers, President of the United States, Mainstream Revolutionary and Militant.
"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." - Rep. Elbridge Gerry of Massachusetts, Signer of the Declaration of Independence and Member of the Constitutional Convention, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789
"It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error." -- U.S. Supreme Court Justice Robert H. Jackson
It is of great interest to note that in the ensuing years since this Amendment was ratified that commas have been inserted after the words "Militia" and "Arms", providing misconstruction of a very explicit restriction on the legislatures and the government. These commas appear in virtually all presentations of the 2nd Amendment today, including the official NARA presentation, and in no early publication that we have found to date. The correct wording as presented to the States for ratification, and as ratified, is shown in this image of the "True Bill" and also in The Federalist On The New Constitution, 1796, Page 16 showing the first 4 amendments; See the discussion of the first twelve Amendment proposals.
Just recently, June 1999, I have finally found a Government presentation of the Constitution which has the Second Amendment correct . . . without the extra commas after the words Militia and Arms.
The Presentation, Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States was PREPARED BY THE CONGRESSIONAL RESEARCH SERVICE - LIBRARY OF CONGRESS
The discussion is not very definitive . . . but worth studying. This, however, is a definitive statement . . . "\1\ Whatever the Amendment may mean, it is a bar only to federal action, . . ."
The interpretation of the words "Well Regulated" at the time that the Amendment was written was in the context of a field piece (the militia of able bodied citizens, organized or not, is the "field piece" of the American people"). A well regulated field piece is fully manned, armed and equipped, aimed, accurate and ready to defend the rights and freedoms of the citizens. So also the description of a timepiece, accurate, not deviating, precise and to the moment, in present time.
The second clause is the bar against any and all Federal actions by any branch thereof . . . executive, legislative or judicial.
The Second Amendment Stands as the Guarantor of All other Rights and of the Defense of the Constitution itself.
This argument is faulty because legal interpretation generally assumes that lawmakers act with clear purpose. More important, the Senate that made this critical deletion was dominated by Federalists who were skeptical of the militia's performance during the Revolutionary War and opposed to the idea that the future of American defense lay with the militia rather than a regular army. They had sound reasons not to commit the national government to supporting a mass militia, and thus to prefer a phrasing implying that the militia need not embrace the entire adult male population if Congress had good reason to require otherwise. The evidence of text and history makes it very hard to argue for an expansive individual right to keep arms.
http://www.historycooperative.org/journals/wm/59.1/rakove.html
"...By focusing on behavior--the ownership of firearms, their use in daily life, and perhaps most important in this context, the function and operations of the militia--Bellesiles casts the constitutional debate in a new light. What difference would it make to our understanding of the Second Amendment if we found that ownership was far less widespread than previously assumed, that firearms had little value for either self-protection or the slaughter of succulent mammals, and that the militia was typically a moribund joke in time of peace and of little military value in time of war?"
"...However hallowed a place the image of a citizens' militia occupied in American political ideology, Bellesiles argues, prosaic reality never corroborated normative expectations. In peace, the militia quickly atrophied (if it had any vigor at all); in war, its shortcomings became embarrassingly evident."
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It appears as though Mr. Rakove has not rejected the fraudulent "scholarship" of Mr. Bellisles. We need to put this question to him.
Under any other construction of the amendment relating to the [right to keep and bear arms], than that it declared the [right to keep and bear arms] to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the States, nor be calculated to extend the ground of public confidence in the government." --- James Madison, REPORT OF 1799 on the Kentucky-Virginia Resolutions
Start with a small question, and when he grudging allows that you are correct, keep turning up in your shabby suit with your hat in hand.
From his website:
http://history.stanford.edu/faculty/rakove
"...As something more than a sideline to this broad agenda, I have also become a Madisonian scholar in two senses of the term: first, as his biographer and as a commentator on his constitutional theories; and second, in a normative sense, as someone who has adopted what might be called a Madisonian perspective in my own writings."
Email: rakove@stanford.edu
William Rawle, A View of the Constitution of the United States 125--26 1829 (2d ed.)
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, 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 regulations 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 it 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 the 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.
This right ought not, however, in any government, to be abused to the disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.
http://press-pubs.uchicago.edu/founders/documents/amendIIs6.html
House of Representatives, Amendments to the Constitution
17, 20 Aug. 1789Annals 1:749--52, 766--67
...Mr. Scott objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army. I conceive it, said he, to be a legislative right altogether. There are many sects I know, who are religiously scrupulous in this respect; I do not mean to deprive them of any indulgence the law affords; my design is to guard against those who are of no religion. It has been urged that religion is on the decline; if so, the argument is more strong in my favor, for when the time comes that religion shall be discarded, the generality of persons will have recourse to these pretexts to get excused from bearing arms.
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This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms
Whazzup with that???
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the whole ball of wax:
http://press-pubs.uchicago.edu/founders/tocs/amendII.html
REPORT OF 1799. VIRGINIA. HOUSE OF DELEGATES.
Madison is talking about the press:
"...Under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government."
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I like Madison's "Here is the most satisfactory and authentic proof, that the several amendments proposed, were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government."
One can see clearly that the Second Amendment is either declaratory or restrictive:
declaratory - "the right to keep and bear arms shall not be infringed"
restrictive - "the right to keep and bear arms shall not be infringed" by the federal government
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