Archive for the ‘Second Amendment Scholarship’ Category

America’s Gun

There isn’t a consensus on what exactly that firearm would be. I’ve learned more than I have ever cared to know about the AR-15 in the past month or so. The AR15 definitely qualifies since it was designed by an American, Eugene Stoner. Enough of them are out there in the US that any chance of an “assault rifle ban” would be really difficult. And that’s even with a buyback.

I feel the same way I do about the AR15 that I do about Margaret Thatcher: I don’t like either of them, but I respect what they are in relation to their respective country’s culture. The AR15 is probably more symbolic toward US culture than Margaret Thatcher will ever be to Britain’s.

It is a symbol of militarism since it was designed over 60 years ago for the US military, with variants  used by military forces worldwide. Part of its attraction is that it is the civilian version of the US military’s weapon. And its deadliness is one of its attractive features. It is proven in combat and mass shootings.

The AR15 platform allows for it to be built in a myriad of different ways. It is also fairly easy to build with various kits being sold; from complete upper and lower receiver assemblies to the parts for making a ghost gun. Although, ghost gun means a firearm made “80%” lower receiver and parts. It is the AR15’s ability to be built by anyone which should cause people to pause.

I personally would not want to invest the time and effort into making an actual ghost gun. Complete stripped lower receivers are also available, which is the lower receiver block without the parts. That allows someone to create their custom gun. It’s easy to customise a completed lower receiver as well. Just look up a video on how to do that mod to your gun.

And there are the AR15 pistols as well, which I am mentioning since there is the debate as to how often these weapons are used in crime:

Mass shootings involving rifles like the AR-15 can produce dozens of victims at one time, and combined with extensive media coverage of these events, many people have been led to believe that such rifles pose a significant threat to public safety.

However, such shootings are extremely rare, and a look at the FBI data informs us that homicide with these types of rifles represents an extremely small fraction of overall homicide violence. Banning or confiscating such firearms from the civilian population would likely produce little to no reduction in violent crime rates in America.

Given the amount of variations on the AR15, there are a fair amount of pistol versions. One manufacturer lists barrel lengths from 8 inches to 20 inches for their upper receiver assembly. An interesting riff on all this since Orlando, Florida, authorities revised their initial description of one of the weapons used in the June 2016 attack at Pulse nightclub. After initially describing it as an “AR-15-type assault rifle,” police said it was a different type of firearm, the Sig Sauer MCX.

One the the variants of the MCX is the Rattler SBR (short barrelled rifle)[1]. While SBRs are NFA weapons, it’s pretty easy to bang one up using the AR15 platform. I would also toss in that semi-auto pistols that accept high capacity magazines are banned in some places. Additionally, a submachinegun is a machinegun that fires pistol calibre ammunition. That means that submachineguns are basically pistols that can have a very high rate of fire.

But the main reason I would say that the AR15 is America’s gun is that it will probably never be regulated despite the carnage it is capable of causing. Despite the deadly shooting in Las Vegas to the 20 toddlers killed at Sandy Hook, these weapons are more than freely available to anyone who wants one. You can buy an 80% receiver with no background check to build whatever version of an AR15 you want.

That means that anyone who is adept with metalworking tools, or just adept with tools if it’s a polymer 80, can crank out a weapon intended for the battlefield.

That should cause you to pause and think no matter what your opinion of these weapons happens to be.

[1] Short barrelled rifles are another topic which I am not going to get into.

Lots of thoughts

I am really annoyed with the level of virtue signalling/pandering I’ve been seeing as the reaction to the riots. My particular gripe is with “Juneteenth” which was pretty much unknown until fairly recently, especially the last few days. This is true even amongst “people of colour”.

The fact it has eclipsed Odunde in Pennsylvania, let alone Philadelphia, is more than enough to demonstrate to me that recent attention has been pandering and not very sincere. I would be truly insulted if I were black at how this event has suddenly received attention. But I doubt it will be a thing in another news cycle.

Which gets me to the riots, which they were. The fact that the peaceful demonstrations turned violent should have led to a distancing from the violence. Instead we receive virtue signalling that the looting is somehow OK. Toss in that defunding/abolishing the police can even be considered, let alone discussed.

The riots have helped gun sales go through the roof. We can pretty much forget ever having an “assault rifle ban”. Any buyback would make the Covid-19 economic relief look like a drop in the bucket. It’s possible.

But so is becoming a billionaire by winning the lottery.

The “Gun Violence Protection” crowd is showing how out of touch they are with the current state of events. Case in point is something I saw from Everytown where they were talking about how the Gun Rights crowd talked about fighting tyrannical government. Of course it also tried to paint recent events as “peaceful protest” neglecting the curfews and lockdowns in many US cities.

I’ve been wanting to talk about option 2 for why a someone would need an assault rifle, which is the exact opposite of “tyrannical government”.  That is when your country has become a failed state.

A failed state is a political body that has disintegrated to a point where basic conditions and responsibilities of a sovereign government no longer function properly (see also fragile state and state collapse). A state can also fail if the government loses its legitimacy even if it is performing its functions properly. For a stable state it is necessary for the government to enjoy both effectiveness and legitimacy. Likewise, when a nation weakens and its standard of living declines, it introduces the possibility of total governmental collapse. The Fund for Peace characterizes a failed state as having the following characteristics:

  • Loss of control of its territory, or of the monopoly on the legitimate use of physical force therein
  • Erosion of legitimate authority to make collective decisions
  • Inability to provide public services
  • Inability to interact with other states as a full member of the international community

Common characteristics of a failing state include a central government so weak or ineffective that it has an inability to raise taxes or other support, and has little practical control over much of its territory and hence there is a non-provision of public services. When this happens, widespread corruption and criminality, the intervention of state and non-state actors, the appearance of refugees and the involuntary movement of populations, sharp economic decline, and foreign military intervention can occur.

There were a few commenters who were pointing out the United States was a failed state prior to the Covid-19 lockdown, but the recent riots have shown that the US is indeed a failed state.

In that case, who is going to protect you?

I am not going to debate the wisdom of owning a firearm or other weapon during such a time. But I do understand why people would want them.

The virtue signalling crowd needs to step back and assess where the US happens to be at this point, because the US is not in good shape. And pandering to the mob is the wrong course of action.

A militarised police is nothing new…outside the United States

French KeufThe term “Gendarme” may connote the quaint French Policeman like the one in this picture.

Not really, the French Gendarmerie Nationale is one of France’s two national police forces. Unlike the Police Nationale, the Gendarmerie Nationale is a branch of the French Armed Forces placed under the jurisdiction of the Ministry of the Interior with additional duties to the Ministry of Defense.

To try and analogise this to US law enfocement, the Police Nationale would be something like a combination of large city police forces and the FBI. The Gendarmerie would be more like the State Police forces, patrolling the smaller cities, towns, and countryside. But unlike the State Police forces there are two different branches: the Departmentale and the Mobile. The Departmental being like the state police forces.

The mobile being an internal army, quite literally. main responsibilities are:

  • crowd and riot control
  • general security in support of the Departmental Gendarmerie
  • military and defense missions missions that require large amounts of personnel (e.g., counter-terrorism patrols)

Nearly 20% of the Mobile Gendarmerie squadrons are permanently deployed on a rotational basis in the French overseas territories. Other units deploy occasionally abroad alongside French troops engaged in military operations (called external operations or OPEX).

Let’s toss in the the Gendarmerie Nationale also has the Groupe d’intervention de la Gendarmerie nationale (GIGN), an elite law enforcement and special operations unit numbering about 400 personnel. Its missions include counter-terrorism, hostage rescue, surveillance of national threats, protection of government officials and targeting of organized crime. GIGN is one of the world’s top Special Forces groups, which is something that would make people who get upset about armed police to go apoplectic and die.

And the Gendarmerie Nationale’s history goes back to the Maréchaussée of the middle ages. Maréchaussée, or Marshalcy.  During the middle ages there were two Grand Officers of the Kingdom of France with police responsibilities: The Marshal of France and the Constable of France. The military policing responsibilities of the Marshal of France were delegated to the Marshal’s provost, whose force was known as the Marshalcy because its authority ultimately derived from the Marshal. The Marshalcy dates back to the Hundred Years War, and some historians trace it back to the early twelfth century. Another organisation, the Constabulary (French: Connétablie), was under the command of the Constable of France. The constabulary was regularised as a military body in 1337.

Gendarme means Man at Arms. So the Gendarmes were the “men at arms” of the Middle Ages. The term was more specific than just men who had weapons, but were government officials.

Also, France’s Gendarmerie has been highly influential on other national police forces, mostly in civil law and former French Colonies.

Reality versus gun rights

It’s really fun watching people defend the rioters and looters in the current situation. I’m going to use Pennsylvania law, but there is Title 18, Article F, Chapter 55: Riot, Disorderly Conduct and Related Offenses, which means that the destruction and looting caused by the rioters is illegal.

No ifs, ands, or buts about it.

Trashing stores and stealing the contents is not a political act, but a criminal one.

Let’s add in that not only is it a criminal act, but it is actual violence. As I said to one person being able to understand the rioters would also mean that you understand why people are protesting the Covid-19 lockdowns with guns. As they say, they may not agree with the method, but they understand the frustration.

Actually, I find the armed protesters less of a threat than I do an out of control mob who are actually engaged in violent acts. Arson is a major cause of loss of life and injury in commercial properties. Strangely, the people who somehow find that the rioting and looting are justified have an issue with people exercising their right to self-defence.

Rioting, looting, arson, and the other illegal acts mentioned in Title 18, the crimes code, and specifically Title 18, Article F, Chapter 55, are just that crimes and illegal. On the other hand someone does have the right to self-defence if they have a reasonable belief that are in danger of death or serious bodily injury. Which happens to be a very real threat if you are in the sights of rioters.

One person said, “couldn’t you get out of their way, or leave town?” Is that a fair question if you get the lockdown order and AREN’T allowed to leave? Someone in that situation is pretty much stuck.

Which gets to the gun rights type’s question: “shouldn’t the person be allowed to defend themselves?” To which “Fuck, yeah!” seems to be the most sensible answer. And if the best weapon happens to be something semi-auto that can accept a large capacity magazine: then they should indeed be allowed to have such a weapon.

Which is why I titled this the way I did.

The person who somehow feels that the violence is “justified” or “understandable” should also be able to accept that people have a right to protect themselves. And the right which is lawful is the one of self-protection.

Not rioting.

Or as Donald Trump said: “when the looting starts, the shooting starts.

While I don’t like Trump or the underlying events which led to the protests, the movement to violence has changed the game to a no win situation. And the people who are going to be the big losers are the ones the protests were supposed to help.

Likewise, I have made it clear that I don’t support “gun rights” or believe it to be a real thing, but if people are going to condone violence, then they need to accept that the cycle of violence will continue.

And isn’t ending the violence what the protests were trying to do?

You can condemn the violence, yet still support the underlying cause. If anything, it makes far more sense to condemn the violence instead of allowing the cycle of violence to keep rolling on.

Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

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.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Gun Control Irony

Yeah, yeah. I try not to post this stuff on my blog, but this one is pretty important.  It was posted on Penigma, but I want my other post to get a few more views before this shows up again on that blog.

On the other hand, this needs to get out there.  That said:

It would be really ironic if instead of all the mass shootings the US has suffered (my condolences to the victims and their families of those), that the incident that caused people to realise the US needs gun control is an out of control suburban mother fighting over a notebook in a suburban Wal-Mart.

No, pulling a gun in this situation is not self-defence by any stretch of the imagination.  No one was fearing death or serious bodily injury which would justify even the threat of deadly force.

The woman pulling the gun is committing Felony Assault under Michigan law, Section 750.82.

The offense of Assault with a Deadly Weapon (ADW), is also known as Felonious Assault in Michigan. ADW is felony which is punishable by up to 4 years in prison. ADW is a crime which involves an assault with a deadly weapon (such as a gun or knife) or any other instrumentality which is fashioned or used as a weapon (car, club, bottle) which is capable of inflicting serious bodily injury or death. A criminal charge or conviction does not require actual physical contact or an injury. The offense is considered complete upon placing another in fear of an assault by a person who possesses a deadly weapon

Michigan law requires that the defendant “must have honestly and reasonably believed that he or she was in danger of being killed, seriously injured or sexually assaulted” in order to use deadly force.  Additionally, the defendant “may only use as much force as he or she thinks is necessary at the time to protect himself or herself.”

While a person may believe he or she had acted in self-defense, the police, prosecutor, judge and jury may disagree.

No shots need to be fired for her to be found guilty.

I’m not sure how the “pro-gun” crowd can defend this action.  I know responsible gun owners don’t, but it’s time they stepped up to the plate and admitted this shit happens too often with the relaxing of concealed carry law for it to be condoned.

It’s time to give Presser v Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) yet another plug.

One of the many failings of the Heller-McDonald bullshit is that those cases were not cases of first impression, but that post is coming in the future.

See also:

What Does Brandishing Mean? And Why You Should Never Do It…

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“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.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

I’m feeling left out of the fun…

Sort of.

Mike the Gun Guy and Amanda Gailey are getting loads of attention from the NRA these days.  I no longer post at the MikeB blog as well, which means most of my activities are on social media: where I am very active.

And very effective.

So, fuck the Bollocks Circle Jerk–they don’t really test their bullshit and probably should change their name to that (Bollocks Circle Jerk) just for honesty’s sake.  Bollocks my dog probably has been in more courtrooms than he has.

I’ve been saying all along that the pro-gun side is based on science fiction (literally). “An armed society is a polite society” comes from Robert Heinlein’s “Beyond This Horizon”. If you are unaware, this is a novel where duels may easily occur when someone feels that they have been wronged or insulted that is attributed as a custom that keeps order and politeness.

We have seen where the other arguments are based on misquotations and fake history.  I’ve long wanted to rip apart the revisionist history of the Second Amendment, but I now know that someone else will do that for me using the material I have provided.

But, that was one of the purposes of this blog.

I won’t even bother with John Lott and the Bullshit serious overestimate of DGUs.  Where the fuck are the heroes with guns when the daily mass shootings happen?

People carrying weapons in public is not a right (Presser v. Illinois, 116 U.S. 252 (1886), Robertson v. Baldwin,165 U.S. 275 (1897) at 282 [1], and DC V Heller, 554 U.S. 570, (2008)[2]). Heller mentions Rawle, which says:

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.

The ultimate argument against open carry and guns everywhere are the Colorado Springs 911 calls relating to the mass shooting.Open carry comment at 2:49 of first call.

https://soundcloud.com/allison-sylte/sets/911-calls-for-colorado-springs-shooting-that-killed-3

Do you know how bizarre your gun free zone arguments sound when a 911 operator gives a mass shooter a pass because he had a right to walk around with a gun?

 The funny thing is you people don’t realise how stupid you sound with your silly arguments that are so obviously false: especially if one is willing to make the effort to fact check them.

Anyway,  It’s time that the debate began to be based on facts, not bullshit.  Congress needs to repeal the research ban on gun violence (come on, people, can’t you admit that your bullshit doesn’t survive scrutiny?). [3]

Additionally, it’s time the Supreme Court owned up that the Second Amendment has fallen victim to desuetude. It would be a truly conservative act to make that admission.  Here is Justice Robert Bork (The Tempting of America (1990)) on this issue:

“There is a problem with laws (which are not enforced). They are kept in the code books as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude or that the defendant should go free because the law had not provided fair warning.”

The Second Amendment was obsolete when it was written. Joseph Story pointed that out in 1833:

And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[4]

The problem is that the protection intended is no longer needed.

And trying to somehow “modernise” it has met with resounding failure.

This is a matter of public safety, not something that should be a subject for political machinations, which is the real perversion of the Second Amendment.

Anyway, I am being the resource I want to be and people I respect pay attention to what I say.  The ultimate thing is that the facts are getting out despite the attempts to silence us.

As for Mike the Gun Guy and Amanda Gailey, they couldn’t give a shit about your opinions either.  In fact, they have been laughing at you.

And I also don’t value your opinions.

I wish more people would ignore you.

footnotes:

[1]  “the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons”–Robertson v. Baldwin,165 U.S. 275 (1897) at 282
[2]

Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

[3]  yeah. yeah.  I know you want to barrage me with your bullshit, but that’s all asked and answered.  Besides, I’m not out to persuade you of anything–I already know you are someone who doesn’t think. If you really want to have a response from me, go read this.  It’s generic, but it makes the point.

[4] Joseph Story, Commentaries on the Constitution 3:§1890 (1833). See also, Adam Smith, Wealth of Nations, Book V, Chapter I, Of the Expences of the Sovereign or Commonwealth, PART I Of the Expence of Defence particularly v.1.26-7.

Not sure whether boasting rights are proper, but…

This showed up in my e-mail:
cornell
I have to admit to feeling really honoured that serious scholars take what I write seriously.  Part of why I don’t blog is that I am involved in my substantial activities in trying to counter Second Amendment revisionism,  but to be linked to Saul Cornell is seriously cool!

I’m glad that people who know what is going on appreciate the stuff I do even if I’m not totally serious about this.

Well, as not as serious as this subject deserves.

Next idol on the list to be linked to: George Monbiot!

More on the Unorganised Militia

Usually, you get someone pointing to 10 USC §311(b)(2) and saying they are part of the Unorganised Militia.  Unfortunately, this section of the Code doesn’t give a gloss on what exactly this means, but I have gone into it before in other posts: Asked and Answered–Unorganised, Sedentary, reserve, etcetera militias explained and Still more on the Unorganised Militia.  Basic info being:

The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained

Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.

The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.

Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83

The term “unorganized militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganized militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.

Of course, legal method would tell you that there might be another part of the US Code that addresses this issue.  In fact, Title 10 is the Section of the US Code that covers the Armed Forces and there are sections that further elaborate on this topic.  10 USC Chapter 1003 – Reserve Components Generally–specifically addresses who the national guard happens to be:

10 USC 10101

The reserve components of the armed forces are: (1) The Army National Guard of the United States. (2) The Army Reserve. (3) The Naval Reserve. (4) The Marine Corps Reserve. (5) The Air National Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.

10 USC 10105 – Sec. 10105. Army National Guard of the United States: composition

The Army National Guard of the United States is the reserve component of the Army that consists of – (1) federally recognized units and organizations of the Army National Guard; and (2) members of the Army National Guard who are also Reserves of the Army.

Also 10 USC § 312. Militia duty: exemptions, addresses who exempt from service in the militia. 32 USC § 313 deals with who can enlist to serve in the militia.

As I have said before, you need to actually be a member of the National Guard to actually claim that you are a member of the militia.  And that Constitutionally, the only body that can call itself a militia is one which is organised under Article I, Section 8, Clause 16–not the Second Amendment.

I should also add that the unorganised militia is usually addressed in state laws, where it is made clear that this is a reserve force with no duties or obligations.

See also

Questions for people like Judge Andrew Napolitano who say the Second Amendment means that people can assassinate tyrannical politicians

Questions for people like Judge Andrew Napolitano who say the Second Amendment means that people can assassinate tyrannical politicians:

“Then, was John Wilkes Booth within his right to have assassinated Lincoln given that he said “sic semper tyrannus”? In other words, Lincoln was a tyrant in Booth’s opinion–was that legal justification enough to have placed the Assassination within his Second Amendment right?

Furthermore, does that make assassination a part of the Second Amendment right? So that when anyone believes a politician to be a “tyrant”, they are justified in assassinating them?

How does that fit into a scheme of establishing justice as well as promoting domestic tranquility and the general Welfare?”

Second Amendment Bibliography

I’m keeping this list of sources I have found useful relating to PROPER Second Amendment Scholarship, that is the scholarship which keeps it within the context of providing for the common defence and civilian control over the military. I know there are sources that purport to show that somehow something which is called “being necessary to the security of a free State” is able to be neglected despite statutory construction saying that no part of a law is superfluous. I find those “authorities” to be false and not worth the time, but should you wish to begin to delve into what was the actual intent of the drafters of the Constitution and their mindset, then you can use this list as a beginning.

D.C. v. Heller: Was Scalia Honest with the Facts?

I decided to see what else the Federalist Blog had to say about theLink Second Amendment and came up with this. I know you like to try and get me to think that I am the only person who holds these opinions, but I hate to break it to you. Take it away, P.A. Madison!

by P.A. Madison on July 16, 2008

in 2nd amendment

    • “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” –Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

The recent Supreme Court ruling in District of Columbia v. Heller caught me by surprise by how far the majority, lead by Justice Antoin Scalia, were willing to go to make a case for a broad individual right under the Second Amendment. While plaintiff prevailed under a starkly divided court, the majority failed to provide any clear and convincing evidence to support their claim for a protected individual right. Instead, Scalia presents strained, forced constructions that often were self-contradicting, and seemingly, served only to favor the majorities’ own prejudicial ideal of what keeping and bearing arms should mean.

For example, Scalia writes like the “First and Fourth Amendments, codified a pre-existing right,” and the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’” Later, however, he declares “there seems to us no doubt” the Second Amendment “conferred an individual right to keep and bear arms.” Which is it, recognition of a pre-existing right or does it directly confer the right?

Clearly the majority subscribed to the view that yes, the right to keep and bear arms are words associated with military service, but these words can also be read to mean more than citizen soldiers keeping of arms to bear in the service of a militia.

Scalia explains the “Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.” Additionally, Scalia adds this prefatory clause acts as a “clarifying function,” and “does not limit or expand the scope of the operative clause.”

One must wonder why, if the prefatory clause acts as a “clarifying function,” the court is adjudicating a District of Columbia gun regulation that does not directly cause any lawfully organized State militia to be disarmed. The prefatory clause remember, speaks only of a well regulated militia being necessary to the security of a free State and not of any private right for individuals to privately keep or use firearms for any purpose.

According to the majority, the answer is because “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.” Thus, the majority thinks reading the Second Amendment as “protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as ‘the people.’” Therefore, the majority begins with the “strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

Would this mean no one could have ever been compelled to bear arms in the service of the militia because the right can only be exercised individually? Obviously, that prefatory clause is not so clarifying after all.

Perhaps this above so-called explanation is why Scalia felt it was necessary to speak of the Second Amendment as indeed directly conferring a right rather than simply recognizing a reserved right of the people under their State sovereignty to form armed militias. However, if the Second Amendment confers an individual right having nothing to do with service in the militia, one naturally might wonder why a republican form of government was chosen, complete with separate constitutions with their own bill of rights?

Furthermore, if the prefatory clause were to be viewed as dead letters, and limiting national powers ignored (as customary these days), the operative clause would have to be read as an absolute right because the right is unconditional with no exceptions. A law against carrying concealed weapons would be unconstitutional because the right to keep and bear arms alone says nothing about government authority to encroach on the right of people to keep or carry any type of arms.

And the majority did indeed treat the prefatory clause as dead letters when it wrote the “banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family, would fail constitutional muster.” To keep guns at home by private choice and for private use has nothing to do with service in the militia under State militia laws. Perhaps if State law made it compulsory for citizens to keep certain arms and ammo at home for use when called to militia service as some once did, and local laws banned keeping those weapons, such a law could well be struck down under State armsbearing amendments.

Therefore, the amendment obviously does not itself confer anything to anybody except declaring Congress possesses no power to infringe a free people’s right to form and maintain armed militias for common security under lawful authority. Otherwise, there could be no regulation by law for the keeping or carrying of guns under most armsbearing language found in State constitutions.

The State of New York under clause three of its Bill of Rights, adopted nearly identical language as the Federal Second Amendment. However, under clause four, citizens could not on their own “find soldiers or men of arms, either horsemen or footmen, without the grant and assent of the people of this state, by their representatives in senate and assembly, except in the cases specially provided for by the constitution of the United States.” This clearly recognizes the keeping and bearing of arms to those arms used for the collective arming of bodies of men.

To show how poorly the operative clause fits with the prefatory clause, Scalia tries to convince us the right to keep and bear arms under the Second Amendment was understood to have broad meaning beyond arms of the militia: “In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”

The problem here, though, is the prefatory clause does not address other “numerous instances.” Citing the majorities own cited source, William Rawle, the right to bear arms is “corollary” to the proposition of a well-regulated militia as necessary to the security of a Free State. The majority accepts the meaning of a “well-regulated” militia to mean “nothing more than the imposition of proper discipline and training,” yet on the other hand, they suggest to bear arms can only be “exercised individually.”

The majority goes on to insult readers reading comprehension by quoting such legal scholar’s as J. Pomeroy, Story, Cooley, and others, in supporting their view that bearing arms was not understood to be connected to service in the militia. Scalia quotes Thomas Cooley as saying the “alternative to a standing army is ‘a well-regulated militia’; but this cannot exist unless the people are trained to bearing arms.”

Question: Was keeping a handgun for personal self-defense ever considered part of a training regime in bearing arms under a well-regulated militia?

The expressions Scalia quotes from legal scholars attest only to the long held principle of keeping and bearing arms found under the Second Amendment as those arms normally used by a well-regulated militia, and for which are necessary and suitable to a free people to aid them in resisting oppression, usurpation, repel invasion – not those arms used for purposes of committing bank robbery, shooting rabbits or home intruders.

Scalia quotes from J. Pomeroy, but omits his conclusion of the object behind the Second Amendment: “The object of this clause is to secure a well-armed militia.”

The majority thinks their “interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.” They count two (Pennsylvania and Vermont), and possibly two more, State Constitutions they feel might be analogues to the Federal Second Amendment. They allege Pennsylvania and Vermont “clearly adopted individual rights unconnected to militia service.”

The Pennsylvania Constitution read “The right of the citizens to bear arms in the defence of themselves shall not be questioned,” while the Vermont Constitution read: “That the people have a right to bear arms for the defence of themselves and the State–and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.”

The majority commits a significant error in ignoring other clauses in these constitutions that use the phrase “bear arms.” Under Article 9 of the Vermont Constitution no man “who is conscientiously scrupulous of bearing arms, be justly compelled thereto.” Article VI, Sec. II of the Pennsylvania Constitution read: “The freemen of this commonwealth shall be armed and disciplined for its defence. Those who conscientiously scruple to bear arms shall not be compelled to do so; but shall pay an equivalent for personal service.”

The fact these Constitutions attach a strong military association with bearing arms for defense leaves little doubt what the employed words mean. Scalia could respond by suggesting “bearing arms” meant several different things depending on the context the phrase is used – but this path would run into a thick wall.

Scalia suggests Justice James Wilson interpreted the Pennsylvania Constitution’s armsbearing right as recognition of the natural right of defense “of one’s person or house–what he called the law of ‘self preservation.’” But Wilson makes clear he is not advancing an individual right to keep and bear arms for personal defense under the Pennsylvania Constitution but only describing its historical meaning that is different from what the majority attempts to place on words alone.

Speaking of the constitutional right of the citizens to bear arms in the defense of themselves shall not be questioned, Wilson says, “This is one of our many renewals of the Saxon regulations,” and that “one may assemble people together in order to protect and defend his house.” No question Wilson was speaking from personal experience after having in the year 1779 to collectively defend his home along with 34 others from 200 angry protesters who opened fire, killing two who were inside.

Wilson and his fellow defenders were not only able to hold off the mob long enough for reinforcements to arrive through collective defense, but also through ammunition that had been gathered from a local public armory. Thus, Wilson is talking about the renewal of Assize of Arms as established under King Alfred, where his subjects were compelled to become united under sword for the common defense of their family, neighbors, parish and realm. Without such a united defense, no single man with a musket could have been able to defend either themselves or home against a mob of 200 people.

Judge Story remarked in his commentaries that it is impossible to keep the people duly armed without a disciplined and organized militia – and this is exactly the principle armsbearing provisions found in constitutions recognize.

During the Pennsylvania Constitutional Convention of 1837, delegate John Fuller expressed this spirit of a common defense under an organized militia when he said every man “should be considered as a citizen-soldier, because it is consistent with the very spirit of our Government, that every man should feel such a deep personal interest in it, as that he would be willing to shoulder his musket, at any time, and not leave it to his neighbor to defend his possessions, or the country which has given him birth.”

In his 1829 annual message to the Pennsylvania Assembly, Governor John Andrew Shulze said, “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ‘ if such a necessity shall arise.” In other words, for the common defense, meaning collectively defending themselves in an organized and trained manner.

Though unlike other similar armsbearing rights found in other State constitutions that used the phrase “common defense” and “bear arms,” the words “bear arms” alone meant the same principle of a common defense because the phrase was understood only to mean bearing arms in the service of the militia for purposes of common defense. Again, militias served as a collective organization of disciplined citizens in defending themselves collectively against other hostile armed bodies of people. Armed individuals alone would be of no use against any organized invasion or security against mass uprising.

There is strong doubt against Justice Scalia’s assertion the “right of the citizens to bear arms” found in these noted constitutions are analogues to the Second Amendment. For example, during the Pennsylvania Constitutional Convention of 1837 there was an attempt to remove the conscientious-objector clause found under Article VI, Sec. II. Delegates who debated this issue found this clause of the State Constitution to be directly analogues to the Federal Second Amendment. For example, delegate John McCahen said:

In the amendments to the Constitution, article second, would be found the following words: “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. It is there reserved to the people of every State the right to bear arms and organize a militia, and we do not entrench either upon the Constitution of the United States, or the laws of Congress, when we provide that the freemen of the State shall be enrolled and organized as militia.”

Scalia writes the phrase “keep arms” was not “prevalent in the written documents of the founding period that we have found.” Article XVII of the Massachusetts Constitution of 1780 read: “The people have a right to keep and to bear arms for the common defence.” This may not be any different under the Second Amendment’s well regulated militia “being necessary to the security of a free State.” In other words, a well regulated militia is necessary to establish a common defense in order to bring about security for any State.

The meaning behind “to keep” is easy to understand through events experienced during the revolutionary war. Military supplies had been forbidden to be exported to any of the colonies by orders of the King, and Governor Gage of Mass. following orders of the King, raided the arsenal at Charlestown, which invoked outrage among the citizens. Because the country was deficient in munitions of war, the Massachusetts Committee of Safety set about secretly collecting muskets and gunpowder to keep at a secrete location where they could later be used to arm the local militia.

It should also be noted that under the old Articles of Confederation States were required to keep arms and ammunition for their well-regulated and disciplined militias in “public stores.”

Speaking of comparisons between the Second Amendment and the English Bill of Rights, Scalia claims “Protestants would never be disarmed” under the provision of the English Bill of Rights that read: “That the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law.” Scalia states this “right has long been understood to be the predecessor to our Second Amendment,” and that “it was clearly an individual right, having nothing whatever to do with service in a militia.”

It is difficult to read from this provision a right for Protestants to never be disarmed because this provision is dependent upon legislation allowing Protestants to have arms for their defense. A law that says Protestants may not have arms would not be infringing because the clause says only that Protestants may have arms for their defense as allowed by law, which provides no protection against banishment. Blackstone described this provision as merely a “public allowance under due restrictions.”

Also, there is no evidence to support the claim this English provision “was clearly an individual right, having nothing whatever to do with service in a militia.” Just the opposite is true as events surrounding the declaration had everything to do with service in the militia.

The Duke of Ormond had formed an all Irish Militia and provided Protestants who served in his militia with their arms. James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641. Meanwhile, Papists were allowed to remain armed and employed in militias contrary to the law of the time.

In 1678, there was an effort to provide defense of Protestants against Papists Militias bearing arms against them. A passage can be found in the Manuscripts of the Marquess of Ormonde, K.P. (December 7, 1678) that reads:

Yesterday and this day some progress was made in the House in those two points wherein all agree for the disbanding of the army, and for Bills that may secure the Protestant religion whatever happens. In this provision there arose a long debate to have either a distinct Bill or a clause in this to enable Protestants to withstand and defend themselves against any Papists whatsoever that should come with commission and bear arms in any military employment, and to dispense with those laws that at present made it rebellion so to do. (Note that in the year 1678 “bear arms” was considered military phraseology.)

As this passage makes clear, Protestants by law were unable to arm themselves under an organized and disciplined militia for defense against the Papists because such an act was considered a pretext to an organized rebellion. This passage leaves little doubt the words “Protestants may have arms for their defense suitable to their conditions and as allowed by law” speaks of arms for the common defense under the laws of an organized militia. This conclusion is further supported by the fact it was the disarming of the Irish Militia and the threat of armed Papist militias that lead to the passage of this provision in 1688, and the fact only Protestants were singled out.

When Lord Amherst ordered the disarming of all inhabitants of London in 1780, he made it clear those who were members of the militia were not to be disarmed along with persons authorized by the King to be armed. The reason is because that would had removed the right of the people to defend or restore order in their community (in this case defend against the riots of 1780).

Scalia appears to ridicule Justice Stevens for placing “great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment.” Joseph Story wrote among the defects sought to be enumerated under the Second Amendment was for people to “have a right to bear arms,” and “persons conscientiously scrupulous should not be compelled to bear arms.”

Delegate Elias Boudinot asked during the Second Amendment debates what dependence can be placed on those who have scruples to bearing arms, and “what justice can there be in compelling them to bear arms, when, if they are honest men they would rather die than use them.” This isn’t the sort of statement anyone would bring up if to keep and bear arms simply means to pack a handgun for personal defense under the Second Amendment. Did Congress or any State ever advocate for the compelling of people to keep guns for their own personal defense at home?

Scalia goes on to quote an 1825 Massachusetts libel case (Commonwealth v. Blanding) as follows: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”

To Scalia, this “analogy makes no sense if firearms could not be used for any individual purpose at all.” It does make a great deal of sense because people in fact had a right under Massachusetts law to make, sale, buy and use firearms provided they had been proved and stamped. Scalia’s mistake is he thinks these remarks might subjectively refer to the State constitutional provision on bearing arms. It does not.

The constitutional terms found under State Constitutions had no application toward the private keeping and use of firearms, and there were no laws preventing citizens from owning and using firearms for the same reason there was no known laws preventing people from owning or using a shovel or, even a tea kettle.

Where guns did come under scrutiny was when they were used to arm organized groups for either lawful or not so lawful purposes. It was not uncommon to find laws for the unlawful organizing of militias outside the laws of the State. It was also common to find laws on small arms that can be concealed or used in crime, and these kind of laws were outside the sphere of bearing arms in the service of a militia.

In Commonwealth of Pennsylvania v. Kreps, the court found pistols were not the kind of arms referred to under the State constitution:

The second amendment of the Constitution of the United States is a limitation of the power of Congress and of the national government only. The constitutionality of statutes relating to keeping and hearing arms must be determined by the constitutions of the respective states. …

A pocket revolver or pistol is not included in the term “arms,” as used in Article I, Section 21 of the Constitution of Pennsylvania, and therefore it was not the intention of the people to reserve the right to carry a pocket revolver or pistol without legislative interference or regulation. …

The Act of April 12, 1873, P. L. 735, which provides, “That any person who shall carry any pistol, dirk-knife, slung-shot or deadly weapon within the city limits of Harrisburg, except police officers, shall be deemed guilty of a misdemeanor” does not violate Article I, Section 21, of the Constitution of Pennsylvania.

In Ex Parte Thomas, 21 Okla. 770 (1908), the court says:

The term “arms,” as used in the Oklahoma Constitution providing that the right of a citizen to carry and bear arms shall never be prohibited, when construed in connection with article 5, §40, declaring that the Legislature shall provide for organizing, disciplining, maintaining, and equipping the militia of the state, applies solely to such arms as are recognized in civilized warfare, to wit, guns, swords, bayonets, horsemen’s pistols, etc., and not those used by a ruffian, brawler, or assassin, such as pocket pistols, dirks, sword canes, bowie knives, etc.

All the laws I have encountered that deal with civilian gun regulations never used the term “bear arms” when addressing private ownership or lawful civilian use of weapons outside of military service. One example is Pennsylvania Game laws, which reads in part: “Provided, That nothing in this act shall be construed to prevent any citizen of the United States, residing within this Commonwealth, from having a gun in his home; or from using such gun in defense of either person or property; or from shooting at targets or from hunting for or shooting at, in any place in this Commonwealth, anything not protected by the laws of this Commonwealth…”

Another example is found under the Civil Articles of Limerick spell out the common civil use of a gun: “Every nobleman and gentleman comprised in the said second and third articles shall have liberty to ride with a sword and case of pistols, if they think fit; and keep a gun in their houses, for the defence of the same, or for fowling.”

You would think most all State statutes would follow the same universal terminology found in Federal and State constitutions if “bear arms” was widely understood to mean private use of weapons for personal self-defense or hunting. The fact this isn’t the case confirms “bear arms” had a specific military application attached.

Some recent additions to State constitutions addressing arms fall into the same trap the majority finds itself arguing, mainly construing the keeping and bearing of arms as meaning an individual right to privately own and use firearms. For example, the State of Nebraska adopted this language in 1988: “the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”

Apart from the misunderstanding the framers of this provision display over the historical meaning of bearing arms, it is a wonderful provision that should be adopted by every State of the Union with a slight change of removing “to keep and bear arms” and inserting more relevant terminology: “to keep firearms.”

The majority thinks Section 14 of the Freedmen’s Bureau Act is proof that during the reconstruction period the Second Amendment was understood to give freed blacks the right to keep and bear arms for personal self-defense:

Sec. 14. That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, and until the same shall be fully restored, and in every State or district whose constitutional relations to the Government have been practically discontinued by the rebellion, and until such State shall have been restored in such relations and shall be duly represented in the Congress of the United States, the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district, without respect to race or color or previous condition of slavery.

One fatal flaw with interpreting Section 14 as recognizing a right of individual persons within States to keep and bear arms is that former rebel States were under the sole administration of Congress, divided into military districts, and were not considered organized States. Therefore, it is easy to understand the justification for including the “constitutional right to bear arms” since Congress had sole jurisdiction. Another flaw the majority committed was ignoring why the “constitutional right to bear arms” language was included in the first place.

It was General Fisk’s letter to the Commissioner of the Freedmen’s Bureau that was the basis for the Act to highlight the bearing of arms:

More than twenty-five thousand colored men of Kentucky have been soldiers in the Army of the Union …. Their arms are taken from them by the civil authorities and confiscated for the benefit of the Commonwealth. The Union soldier is fined for bearing arms. Thus the right of the people to keep and bear arms as provided in the Constitution is infringed, and the Government for whose protection and preservation these soldiers have fought is denounced as meddlesome and despotic when through its agents it undertakes to protect its citizens in a constitutional right.

The infringement turns out not to have anything to do with arms of private citizens at home, but with some 25,000 Union soldiers and their government issued muskets. On the other hand, the city of Opelousas, Louisiana was very careful, unlike Kentucky, not to disarm Freedmen who were in the service of the military:

SEC. 7. No freedman who is not in the military service shall bo allowed to carry fire-arms, or any kind of weapons, within the limits of the town of Opelousas without the special permission of his employer, in writing, and approved by the mayor or president of the board of police. Any one thus offending shall forfeit his weapons, and shall be imprisoned and made to work five days on the public streets, or pay a fine of five dollars in lieu of said work.

Scalia selectively quotes a report from the Commission of the Freedmen’s Bureau in 1866 to buttress the majority’s claim Kentucky’s prohibition of blacks from bearing arms were not in fact “being prohibited from carrying arms in an organized state militia.” In essence, the majority wants us to believe Kentucky’s prohibition against blacks bearing arms had nothing to do with service in the militia, but everything to do with disarming private citizens of their private guns that is said to infringe the Second Amendment. This is a deliberate mischaracterization of the truth.

The law in question specifically was directed at an estimated 25,000 returning black Union soldiers who were returning with their government issued arms – not the banning of private firearms belonging to the public. This attempt to disarm Union soldiers was easily seen as infringing the Second Amendment because they were members of the military – not private civilians. In addition, there were questions over whether Kentucky was acting improper because national law specifically required enlisted militia members to be “white.” In 1867, a bill was presented to remove the word “white” from the militia laws of the United States.

* * * * * * * *There is no evidence to support the majorities’ suggestion that both the Federal Government and States viewed the Second Amendment as an individual right to keep and use weapons outside of the militia as demonstrated below.

In May of 1680, Massachusetts Governor Bradstreet clearly stated what bear arms signified: “We account all generally from fifteen to fifty that are healthful and strong body’s, both Householders and Servants fit to bear Arms, except Negros and Slaves, whom we arme not.” In other words, it is the arming and training of the citizenry who possess this right to “bear arms” who are the sole military power of the colony.

Soon after Alaska had been acquired from Russia, Congress in 1868 empowered the President of the United States to not only ban the importation of firearms into Alaska, but also forbid the use of all firearms within all of Alaska. This law was not considered to be infringing the Second Amendment.

Gov. John Page of NH, speaking of the Second Amendment on June 3, 1841, clearly viewed the amendment as having everything to do with bearing arms in the service of a militia:

The General Government is authorized “to provide for organizing, arming and disciplining the militia;” — and it is very desirable that a new organization should be made. It is believed that we have one and a half million of soldiers enrolled in the militia throughout the Union; of this number we have about thirty thousand in this State, who are called out thrice in each year for inspection, drill and review. This mode of training so numerous a body of soldiers, is attended with a very great aggregate expense, of both time and money, unaccompanied in the estimation of very many of our citizens by an equivalent advantage. The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

Missouri Governor, Claiborne F. Jackson, declared in 1863 the citizens of Missouri had the right to “keep and bear arms in conformity to the State laws and to form a well regulated militia necessary to the security of a free State.”

St. George Tucker, Lectures on Constitutional Law (1843), said to bear arms is a duty of citizenship like a duty to pay taxes: “There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular state. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes.”

Victoria C. Woodhull wrote in 1890: “A citizen possesses all his rights of citizenship from birth, else he can never possess them legally as I have shown; but some of these rights, like the right to bear arms, he does not exercise till the military age.

Harper’s New Monthly Magazine, November 1874 issue: “The reason of the feudal inability of women to hold property was that they could not bear arms to defend and maintain it. If, then, women should not have the suffrage because they can not bear arms to enforce the laws, ought they to have property which they can not bear arms to protect?”

The Act of March 2, 1867, was truly found to infringe the Second Amendment, however, radical Republicans danced around the subject by insisting the rebel States were not legal States (seems rebel States were only considered legal when it came to being forced to ratify the Fourteenth and Fifteenth Amendments.) This Act read in part:

SEC. 6. And be it further enacted, That all militia forces now organized or in service in either of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas, be forthwith disbanded, and that the further organization, arming, or calling into service of the said militia forces, or any part thereof, is hereby prohibited under any circumstances whatever, until the same shall be authorized by Congress.

Why would this Act be universally condemned as violating the Second Amendment, if we are to believe the court majority, the phrase “bear arms” was “unambiguously used to refer to the carrying of weapons outside of an organized militia”?

Patrick Henry proclaimed: ”The great object is that every man be armed. … But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed?”

George Mason said: “Who are the militia? They consist now of the whole people. … the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. … Under the present government, all ranks of people are subject to militia duty.”

Duke of York’s Laws (1676): “No man shall be Compeld to bear Armes or wage war by sea or Land, without the bounds and limits of this Government, But from Defensive wars noe man shall be exempted.”

Speaking of the Federal Second Amendment, prominent Massachusetts politician, Francis Bird, said of the Massachusetts “right to bear arms for the common defence” in October of 1853:

“To keep and bear arms,”–not for self-defence, not for “military instruction,” not for “special service in keeping guard;” but as members of a “well regulated ” [State] militia. This was the very purpose of adopting this second amendment to the federal constitution–to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment,–the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.

On July 2, 1863, U.S. issued orders forbidding citizens of the city of Baltimore and County to keep arms except those with the constitutional right to keep arms being members of a militia. Under the Fifty-first Regiment of Massachusetts Volunteers, assisted by the provost marshal and the chief of police, soldiers in concert with the police went house to house searching for weapons. Muskets, carbines, rifles and revolvers were gathered in considerable quantities.

George S. Boutwell, a significant player in the framing and adoption of both the Fourteenth and Fifteenth Amendments, did not dispute the conclusion the Second Amendment was not applicable towards the States in Presser v. Illinois:

The claim that the statute was in violation of the Second Amendment to the Constitution was disposed of by the declaration by the Court, that the Second Amendment was a guarantee that nothing should be done by the United States in restraint of the right of the people to keep and bear arms, but that the amendment could not be appealed to as limiting the power of the States.

The teaching in this case seems to justify the following conclusion namely: that as long as a State in the exercise of its power does not interfere with the ability of the United States government to command the military resources of the State, it may exercise jurisdiction over its citizens in the enjoyment of the right of freedom in the matter of keeping and bearing arms.

Significantly, Boutwell says Presser v. Illinois is the “only case of importance which has arisen under” the Second Amendment. This is significant because there was no right of the citizen to keep and bear arms under the Illinois constitution, only provisions for “all free male able-bodied persons (negroes, mulattoes and Indians excepted,) residents of the state, between the ages of 18 and 45 years, except such persons as now are or hereafter may be exempted by the laws of the United States or of this state, and shall be armed, equipped and trained as the general assembly may provide by law.”

Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, said as a lawyer during South Carolina’s Ku Klux Klan trials (1871-1872):

What does the Constitution of the United States say about bearing arms? Nothing. What does the fourteenth amendment say upon the same subject? Nothing. The latter is as silent upon the topic as the former, and if the former cause for silence does not cover such a case as this, the latter, for the same reason, does not embrace it. … Has not the State in a case like that the right to take arms from the militia company? I think there can be no doubt of that. And if the right exists to take the arms out of their hands in such a case as that, then it is because the right to bear arms is not a right given by the Constitution of the United States; but exists under the local law of the State.

There perhaps can be no better in-depth analysis by any State Supreme Court on the meaning of the Second Amendment as found in the West Virginia case of State v. Workman:

The second amendment of our Federal Constitution should be construed with reference to the provisions of the common law upon this subject as they then existed, and in consonance with the reason and spirit of the amendment itself, as defined in what may be called its ‘preamble.’ As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offence.

The keeping and bearing of arms, therefore, which at the date of the amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection. So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets–arms to be used in defending the State and civil liberty–and not to pistols, etc.

Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”

In Alabama the court found Section 4 of the Bill of Rights, “which provides that ‘the people have the right to ‘bear’ arms for their defense and security,’ is a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia or any other military organization provided for by law. (Nichols v. State, 4 Ala. App. 115, 58 So. 681 (1912))

Refusal to take the “oath to bear arms” always resulted in denial of citizenship in naturalization court. This remained the rule until 1946 when a 5-3 Supreme Court decision struck down the administering of the Arms-Bearing Pledge. Did anyone ever believe new citizens were required to purchase firearms for self-defense at home?

Bishop, Statutory Crimes, §793: “In reason the keeping and bearing of arms has reference to war and possibly also to insurrections where the forms of war are so far as possible observed. The phrase itself, ‘to bear arms,’ indicates as much. The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as ‘bearing arms.’ The use of the phrase suggests ideas of a military nature.”

A.G. Riddle before the House Judiciary Committee, January 11, 1871, remarked:

Apply the gentleman’s idea to other provisions of the Constitution; for instance, to this: “The right of the people to keep and bear arms shall not be infringed.” Would he contend that therefore every new-born baby might at once grasp a musket? This might be constitutional, but it would put the infantry on a war-footing before the commissariat could be mobilized, I fear. (Laughter and applause.)

Delegate William Barnes remarked during the Constitutional Convention of the State of California in 1878:

[I] find in article two a declaration that a well regulated militia, being necessary to the security of free States, the right of the people to keep and bear arms shall not be infringed. Now, we know that this question was considered a very important one in the early organization of the government, and it is no less important now than it was then, because the people had their choice then as they have now between a well organized State militia in the several States and a standing army maintained by the central government, which, under our system of republican institutions, has always been considered an enemy to liberty, and when the people had their choice between maintaining a large standing army, maintained by the General Government as the great armies of Europe arc maintained, at a vast cost to the General Government and to the people, they determined upon the plan which now exists, that is to say, to provide for the organization and equipment of a militia force.

Finally, allow me to add that it is irrelevant whether militia members might had been required to own their own arms or were provided public arms because all able bodied men were compelled to possess these specific arms by State militia laws.

I will quickly close by saying the Second Amendment right to keep and bear arms means only the right of the people under their own State governments shall never be infringed from organizing and maintaining armed militias for the purpose of a collective security for themselves. The word “arms” had the universal understanding to mean arms of the militia and not general firearms used in civil society.

For NRA pundits, Heller will be held in the same esteem as Roe v. Wade is to Pro-Choice advocates, and like Roe, deserve to be overturned because neither deserves to be called law. The personal right to keep and use firearms remains where it has always remained – under permissible laws demanded by the people themselves under their own State and local governments.

This after all, is what our Republican form of government is all about.

Final Thoughts

It is worth considering the purpose behind the Second Amendment along with the nine other amendments adopted. These amendments, in the words of Madison, were “restrictive & explanatory amendments.” Madison says, all of these amendments indicated a “jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them.” C.J. Marshal said, “In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments.”

Speaking of defending oneself or, ourselves and property, through an armed citizenry is no different then saying the national government defends citizens and property through the military power of the entire member States of the Union in situations of armed invasion by the military establishment of another country. Armed citizens at home are of little use for defending people and property of a State against violence because arms require training, tactics, discipline, communication, etc., to be of any use.

Finally, armed militia’s can easily exist where firearms at home are outlawed because such weapons can be kept in armories for use by members of the militias, or special militia provisions for members to keep arms at home. I am not advocating gun restrictions no more than I would for laws outlawing owning food; I am just saying public laws over private firearms would have no effect on maintaining an armed militia for the defense of citizens of a State.

UPDATE: I was asked to provide a more specific historical definition of the Second Amendment. The Second Amendment is not a right but a declaration of an ancient principle that says the local military power is safer when left to the citizens themselves rather than in a standing army. In this regard the Second Amendment is no different than the Tenth Amendment.

Standing armies were repulsive because they lived among the people and could by law be quartered in people’s homes in addition to aiding leaders in extending their arbitrary power.

We know this is true meaning of the Second Amendment because the number one complaint against the early Constitution was the absence of a security against a standing army. Hence, the reason behind the insertion of the Second Amendment, to put beyond doubt no power was invested in Congress to disarm the State militias and replace them with a national military force.

Why I hate the individual right interpretation of the Second Amendment and so should you.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.–James Madison

It cannot be presumed that any clause in the constitution is intended to be without effect;–Marbury v. Madison, 5 U.S. 137 (1803).

I was thinking about calling this post The Truly Embarrassing Militia Clauses of the US Constitution as a take of on Sandford Levinson’s “The Embarrassing Second Amendment”. In it, Levinson points out that “the second amendment is not taken seriously by most scholars.” Levinson then says:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even “winning,” interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay –The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.

Problem is that Lawyers know the rules of the game better than most plain folks, and in Constitutional law, it appears some know it far better than 5 of the Judges on the Supreme court. Never mind that when Levinson wrote his piece (1989-1990) the Civic Right interpretation was pretty much the norm. The Second Amendment was neglected since it was pretty much seen as settled law prior to the rise of the revisionist pseudo-scholars. Levinson article was part of the flood of scholarship that has led to revisionism of the Second Amendment pseudo-scholars which has unsettled nearly 70 years of settled precedent. The pseudoscholars have been like good magicians and directing people’s attention to the wrong thing while they deceive them into making the illusion look real.

But, my reason for disliking the individual right interpretation goes to the two quotes that start here. True “Second Amendment” scholarship goes beyond just the text of the Second Amendment which everyone involved in this game knows comes in two versions:

As passed by the Congress:

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

.As ratified by the States:

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.

The Pseudoscholarship only looks at the second half of the Second Amendment (“the right of the People to keep and bear arms shall not be infringed”) and tries to neglect the Prefatory clause (A well regulated militia being necessary to the security of a free State). Unfortunately, this has coloured the debate in recent years despite the admonition from Marbury v. Madison that “It cannot be presumed that any clause in the constitution is intended to be without effect”. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. It is wrong that the prefatory text should be treated as mere surplusage according to the original rule for interpreting the Constitution.

The current debate isn’t True Second Amendment/Constitutional law scholarship since that MUST include also the militia clauses from Article I, Section 8 of the US Constitution along with the text of the Second Amendment:

Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have Power *** To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

These two clauses change the debate and bring it closer to historic reality of how the Second Amendment should be interpreted. When the commentators were saying things such as “The great object is, that every man be armed”, Henry was specifically addressing Article I, Section 8, Clause 16 as the text shows:

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The problem is that if one looks at the Second Amendment in light of Congress’s powers under the Militia clauses, in particular–the power to arm the militia, the individual right proposition begins to wither away. Even more so when seen in the proper historical perspective. Then, needs to add Article 1, Section 8, Clause 12 (To raise and support Armies) to the mix to get the proper meaning of the Second Amendment.

Somehow, the dislike of Standing Armies in the Anglo-American mind has also been neglected in this mix. In the 17th and 18th Century Great Britain and the British Colonies in America, there was a sentiment of distrust of a standing army not under civilian control. In England, this led to the Bill of Rights 1689, which reserves authority over a standing army to Parliament, not the King. The Declaration of Independence lists keeping standing armies during time of peace as one of the grievances. This dislike was far more nuanced in the United States Constitution which reserves by virtue of “power of the purse” similar authority to Congress, instead of to the President. The President, however, retains command of the armed forces when they are raised, as commander-in-chief. This dislike of standing armies heavily flavoured the debates relating to the adoption of both the Constitution and Bill of Rights, which leads to to this question from Elbridge Gerry:

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. 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.

The Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.

On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States. Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members as the primary means of providing for the common defense, and the institutional deficiencies of the militia were the subject of bitter complaint.

Fortunately, the Congressional debates regarding the adoption of the Second Amendment are very short and found here. There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, not about personal uses, and widespread support for the proposed Amendment. It became part of the Constitution with the rest of the Bill of Rights on December 15, 1791.

Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power. The proposed Constitution authorized standing armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear.

Thus, the Second Amendment needs to be read as more than just one clause, but within the context of text of the entire Constitution for it to be properly understood. The majority opinion neglected the guide to constitutional construction given by Marbury that “It cannot be presumed that any clause in the constitution is intended to be without effect” and rendered the “prefatory clause” to be mere surplusage, which is far from how a truly “original interpretation” based upon how such a text was understood to be read. This has led to absurdities such as the Chicago v. McDonald ruling which said that a provision relating to Congress’s powers under Article I, Section 8, Clause 16 applies to the states–even though the states do not have these powers granted to them.

It seems to me that there are good reasons for ignoring the Heller-McDonald decisions and reverting to the standard announced by US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:

 

With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

 

Justice William O. Douglas (who was on the Court at the time of Miller) later described the decision as:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Miller addressed Congress’s power over the militia, yet it has been dropped from the current discussion of the Second Amendment thus removing it from the the debate regarding the proper scope of the Amendment.

Ultimately, the right granted by the Second Amendment (and the Third) was supposed to be one that there would be no Standing Army, not for private citizens to own firearms. The Constitution, in particular, the Second Amendment is silent on the issue of non-militia arms. That fact, strips away the concept of “gun rights” as being protected under the US Constitution (although gun rights are found in State Constitutions). Instead, the Second Amendment is a window on a vastly different United States from the one we now live. One in which standing armies were feared.

The Constitution is not to be taken piecemeal, but to be seen as a whole to properly understand it. The individual right concept separate texts from historical background and says that clauses in the constitution are intended to be without effect rendering them mere surplusage. This turns the constitution upon its head by neglecting that there are two concepts that are in conflict here: the State Militias and the Federal Army.

Yet, rather than scream bloody murder this act has been allowed to be perpetrated upon the American public. Justice Berger called this interpretation a fraud upon the American public and the 5 justices played fast and loose with the rules of Constitutional interpretation to distort the constitution. Those who dislike penumbras in the law and government intrusion into the private lives of citizens, yet can tolerate Heller-McDonald need to understand what they have just condoned. For Heller-McDonald has not come from the penumbras, but out of nowhere in violation of the role of judges to be interpreters of the law, not legislators.

Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the “individualist” view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the “collectivist” interpretation, which is supported by history and the pre-Heller-McDonald Supreme Court decisions on the issue: in particular US v. Miller.

The nature of the Second Amendment also does not provide a right that could be interpreted as being incorporated into the Fourteenth Amendment. It was designed solely to protect the states against the powers given to the Federal government under Article I, Section 8, Clause 16, not to create a personal right which either state or federal authorities are bound to respect.

The contemporary meaning of the Second Amendment should be the same as it was at the time of its adoption. The federal government may regulate the body that was called the Militia (now the National Guard), but may not disarm it against the will of state legislatures. Nothing in the Second Amendment, however, precludes Congress or the states from requiring licensing and registration of firearms; in fact, there is nothing to stop an outright congressional ban on private ownership of all handguns and all rifles.

See:

THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Founders’ Constitution:

Article 1, Section 8, Clause 12

Article 1, Section 8, Clause 15

Article 1, Section 8, Clause 16

Second Amendment

Amendment Three

House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749–52, 766–67

Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)

Schwoerer, Lois G. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England

(OK, I am reposting this from MikeB’s Blog, but it’s my post and I can do that!)

Why does the Second Amendment apply to State Militias?

Let’s start with the Articles of Confederation, which were the United States’ first constitutional document. It was drafted in 1776-77 and became the working constitution, although it was not formally ratified until 1781. The Articles authorised the Continental Congress in its supervision of the American Revolution, its diplomacy with Europe, and its handling of territorial issues. There were complaints that The Articles were too weak to adequately administer the United States’s governmental functions. Shays’ Rebellion pointed out many of the flaws in the system of govrnment instituted by the Articles. Some wanted the Articles amended, others advocated a new order. Eventually, the Articles of Confederation were replaced by the current Constitution in 1789.

Article VI of the Articles of Confederation:

nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

There are other paragraphs pertaining to the militia in Article VI, Article VII, and Article IX. Article VII provides that all militia officers under the rank of colonel be appointed by state legislatures. Article IX provides that Congress should appoint officers at the regimental level (colonels, usually) and above, and also gives a procedure by which the federal government could call upon the militia in case of national emergency. It was up to state governments under the Articles to determine which men would serve in the militia.

The Articles also clearly distinguish between troops which can be only be kept in time of peace by states with the consent of Congress and militia which it is the obligation of the state to supply and keep up.

The lack of an institutional response to the Shays’ uprising was among the factors which led to the reevaluation of the Articles of Confederation and gave strong impetus to the Constitutional Convention which began in May 1787. The delegates of the Constitutional Convention granted Congress the power under Article 1; section 8, clauses 15 and 16 of the federal constitution to “provide for organizing, arming, and disciplining the Militia,” as well as, and in distinction to, the power to raise an army and a navy. The US Congress is granted the power to use the militia of the United States for three specific missions, as described in Article 1, section 8, clause 15: “To provide for the calling for of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.” The Militia Act of 1792 enacted these provisions into law with the militia consisting of; “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.”

What was not specified in the Constitution, but was clearly understood by all was that the term ‘militia’ meant the militia of the states given its prior usage and understanding in the system set up by the Articles of Confederation.

Note that the Militia Act requires that the militia member is enrolled into his unit. The actual procedure varied from state to state. In most states at most times, it was the responsibility of the local officers to find out who was new to an area and enroll them in the militia.

For example, here is the 1836-37 Revised Statutes of North Carolina:

“That all free white men and white apprentices, citizens of this state, or of the United States, residing in the State, who are or shall be of the age of eighteen, and under the age of forty-five years, shall, as soon as is practicable, be severally and respectively enrolled in the militia of this State, by the captain or commanding officer of the infantry company within the bounds of whose district…such citizen shall reside; and it shall, at all times, be the duty of every captain or commanding officer of any community, to enrol every such citizen, except as hereinafter excepted; and also those between the ages aforesaid, and not exempt by law, who may from time to time, come to reside within the bounds of his district, and remain therein thirty days; and he shall without delay, notify such citizen of his enrolment, by a proper non-commissioned officer of the company, by whom the notice may be given.”

Also note that the federal government always has the power to “organize, arm and discipline” the state militias. It has this power regardless of whether or not the state militias are called up by the federal government. Furthermore, it routinely used this power at times when no state militias were called up by the federal government. When the state militias are called up, the federal government has additional powers over them, but this has nothing to do with the other powers.

A major concern of the various delegates during the constitutional debates over the Constitution and the Second Amendment to the Constitution revolved around the issue of transferring militia power held by the States’ (under the existing Articles of Confederation), to Federal control. The new Constitution effected a dramatic shift of military power from being militia based and predominately controlled by the States towards being controlled by the federal Congress and the President with the addition of a federal army. It was this shift in power with the Federal government being given the power to arm the militia which led to the Second Amendment.

See also:
The Founder’s Constitution
Militia-History and Law FAQ
Militia Mythology