Archive for the ‘Second Amendment Scholarship’ Category

House of Representative Debates regarding the adoption of the Second Amendment

The nice thing is that it is short and concise, but it doesn’t mention overthrowing the government, or private uses.

Just the evil of standing armies and military uses:

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

[17 Aug.]

The House again resolved itself into a committee, Mr. Boudinot in the chair, on the proposed amendments to the constitution. The third clause of the fourth proposition in the report was taken into consideration, being as follows: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”

Mr. Gerry.–This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

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. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.

Mr. Seney wished to know what question there was before the committee, in order to ascertain the point upon which the gentleman was speaking.

Mr. Gerry replied that he meant to make a motion, as he disapproved of the words as they read. He then proceeded. No attempts that they made were successful, until they engaged in the struggle which emancipated them at once from their thraldom. Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head. For this reason, he wished the words to be altered so as to be confined to persons belonging to a religious sect scrupulous of bearing arms.

Mr. Jackson did not expect that all the people of the United States would turn Quakers or Moravians; consequently, one part would have to defend the other in case of invasion. Now this, in his opinion, was unjust, unless the constitution secured an equivalent: for this reason he moved to amend the clause, by inserting at the end of it, “upon paying an equivalent, to be established by law.”

Mr. Smith, of South Carolina, inquired what were the words used by the conventions respecting this amendment. If the gentleman would conform to what was proposed by Virginia and Carolina, he would second him. He thought they were to be excused provided they found a substitute.

Mr. Jackson was willing to accommodate. He thought the expression was, “No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.”

Mr. Sherman conceived it difficult to modify the clause and make it better. It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other; but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary Government, said he, and the States, respectively, will have the government of the militia, unless when called into actual service; besides, it would not do to alter it so as to exclude the whole of any sect, because there are men amongst the Quakers who will turn out, notwithstanding the religious principles of the society, and defend the cause of their country. Certainly it will be improper to prevent the exercise of such favorable dispositions, at least whilst it is the practice of nations to determine their contests by the slaughter of their citizens and subjects.

Mr. Vining hoped the clause would be suffered to remain as it stood, because he saw no use in it if it was amended so as to compel a man to find a substitute, which, with respect to the Government, was the same as if the person himself turned out to fight.

Mr. Stone inquired what the words “religiously scrupulous” had reference to: was it of bearing arms? If it was, it ought so to be expressed.

Mr. Benson moved to have the words “but no person religiously scrupulous shall be compelled to bear arms,” struck out. He would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government. If this stands part of the constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals.

I have no reason to believe but the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.

The motion for striking out the whole clause being seconded, was put, and decided in the negative–22 members voting for it, and 24 against it.

Mr. Gerry objected to the first part of the clause, on account of the uncertainty with which it is expressed. A well regulated militia being the best security of a free State, admitted an idea that a standing army was a secondary one. It ought to read, “a well regulated militia, trained to arms;” in which case it would become the duty of the Government to provide this security, and furnish a greater certainty of its being done.

Mr. Gerry’s motion not being seconded, the question was put on the clause as reported; which being adopted,

Mr. Burke proposed to add to the clause just agreed to, an amendment to the following effect: “A standing army of regular troops in time of peace is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both Houses; and in all cases the military shall be subordinate to the civil authority.” This being seconded.

Mr. Vining asked whether this was to be considered as an addition to the last clause, or an amendment by itself. If the former, he would remind the gentleman the clause was decided; if the latter, it was improper to introduce new matter, as the House had referred the report specially to the Committee of the whole.

Mr. Burke feared that, what with being trammelled in rules, and the apparent disposition of the committee, he should not be able to get them to consider any amendment; he submitted to such proceeding because he could not help himself.

Mr. Hartley thought the amendment in order, and was ready to give his opinion on it. He hoped the people of America would always be satisfied with having a majority to govern. He never wished to see two-thirds or three-fourths required, because it might put it in the power of a small minority to govern the whole Union.

[20 Aug.]

Mr. Scott objected to the clause in the sixth amendment, “No person religiously scrupulous shall be compelled to bear arms.” He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army. I conceive it, said he, to be a legislative right altogether. There are many sects I know, who are religiously scrupulous in this respect; I do not mean to deprive them of any indulgence the law affords; my design is to guard against those who are of no religion. It has been urged that religion is on the decline; if so, the argument is more strong in my favor, for when the time comes that religion shall be discarded, the generality of persons will have recourse to these pretexts to get excused from bearing arms.

Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary. Can any dependence, said he, be placed in men who are conscientious in this respect? or what justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them? He adverted to several instances of oppression on this point, that occurred during the war. In forming a militia, an effectual defence ought to be calculated, and no characters of this religious description ought to be compelled to take up arms. I hope that in establishing this Government, we may show the world that proper care is taken that the Government may not interfere with the religious sentiments of any person. Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms.

The Founders’ Constitution
Volume 5, Amendment II, Document 6
http://press-pubs.uchicago.edu/founders/documents/amendIIs6.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. “History of Congress.” 42 vols. Washington, D.C.: Gales & Seaton, 1834–56.

The Founders’ Constitution, Amendment II

Things I found in my research.

I usually cite to The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787 when I want to demonstrate “personal right” language being used in the debate over the “right to arms”. That is this text:

7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.

This text uses explicit language that would indicate an “individual right”.

But one of the things I’ve noticed from reading primary sources is that whenever the right to arms is mentioned, not far away is a concern about standing armies. Even this text specifically mentions “standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.” in addition to “personal right” language.

Moreover, if one reads the actual document, one finds the issue of the federal standing army is the real concern, not personal “gun rights”:

From the foregoing investigation, it appears that the Congress under this constitution will not possess the confidence of the people, which is an essential requisite in a good government; for unless the laws command the confidence and respect of the great body of the people, so as to induce them to support them, when called on by the civil magistrate, they must be executed by the aid of a numerous standing army, which would be inconsistent with every idea of liberty; for the same force that may be employed to compel obedience to good laws, might and probably would be used to wrest from the people their constitutional liberties. The framers of this constitution appear to have been aware of this great deficiency; to have been sensible that no dependence could be placed on the people for their support: but on the contrary, that the government must be executed by force. They have therefore made a provision for this purpose in a permanent STANDING ARMY, and a MILITIA that may be subjected to as strict discipline and government

A standing army in the hands of a government placed so independent of the people, may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.

The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil or religious nature.

First, the personal liberty of every man probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind, and to death itself, by the sentence of a court martial: To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.

Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the state. This is the more remarkable, because even when the distresses of the late war, and the evident disaffection of many citizens of that description, inflamed our passions, and when every person, who was obliged to risque his own life, must have been exasperated against such as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conscience were held sacred.

At this momentous crisis, the framers of our state constitution made the most express and decided declaration and stipulations in favour of the rights of conscience: but now when no necessity exists, those dearest rights of men are left insecure.

Thirdly, the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing the* liberty and independency; but in so doing, although the magnanimity of the* minds will be extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will be the ready and obedient instruments of despotism to enslave the others; and that with an irritated vengeance. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow citizens, and on one another. This power can be exercised not only without violating the constitution, but in strict conformity with it; it is calculated for this express purpose, and will doubtless be executed accordingly.

My theory is that there was a fear that laws regarding hunting and personal uses could be used to disarm the militia, which was the intent of these proposed rights to arms. Even this text allows for the public to be disarmed “for crimes committed, or real danger of public injury from individuals”. Thus whatever right existed was far more connected to the militia duty than to personal uses.

Anyway, as I keep saying, if one reads the primary sources of concerning the Second Amendment, one doesn’t need to go too far to find it linked to the threat of a Federal Standing Army.

See also: http://www.potowmack.org/thequotes.html
St. George Tucker, Blackstone’s Commentaries 1:App. 300

Who the Fuck is stopping James A. D’Cruz from joining the National Guard?

I want to say that I fully support James A. D’Cruz’s Second Amendment rights, I understand he is an 18 year old male who was in JROTC and he should be able to directly enlist in the Texas National Guard, which is the Article I, Section 8, clauses 15 & 16 Militia, if he is healthy enough to pass a military physical. The Second Amendment says either:

“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.”

Another version is found in the copies distributed to the states, and then ratified by them, which had this capitalization and punctuation:

“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.”

Nowhere do I see anything that states he can own a firearm outside of the well regulated militia, that is one which has been organised under the militia clauses of the Constitution, which are found in Article I, Section 8, clauses 15 & 16:

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

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;

Which takes us back to my question: Who the Fuck is stopping James A. D’Cruz from joining the National Guard?

Now, I do have to admit he is the perfect test case for the rule that one needs to serve in the US Army prior to being eligible for National Guard service, which is a violation of his Second Amendment right to be a part of an Article I, Section 8, clauses 15 & 16 Militia. On the other hand, D’Cruz doesn’t want to be a part of the military–he wants guns for some personal purpose as Josh Horwitz and others have pointed out.

D’Cruz WANTS to go into combat, which is why he should be allowed to join the militia. Although, since the militia is primarily a defence force, shouldn’t he want to be a part of the US Army? Of course, the Army isn’t covered by the Second Amendment–it’s the militia, which reading the primary sources and Anglo-American history shows to be true: Standing Armies are what tyrants set up when they want to destroy the militia. D’Cruz wants to assert his Second Amendment right, but that right is to bear arms as a member of an Article I, Section 8, clauses 15 & 16 Militia. So, he can join the US Army, but that has no bearing on the Second Amendment. So, D’Cruz NEEDS to join the Texas National Guard if he wants to exercise his Second Amendment right to keep and bear arms.

By the way, if an armed band is not organised pursuant to Article I, Section 8, clauses 15 & 16, it’s not a constitutional Militia.

As General Wesley Clark said: “I have got 20 some odd guns in the house. I like to hunt. I have grown up with guns all my life, but people who like assault weapons should join the United States Army, we have them.”

D’Cruz can join the National Guard if he wants to be around weapons. Let some drill sergeant kick his arse into shape. I support his right wholeheartedly if that is what he wants to do.

Otherwise, he can go fuck himself. The Second Amendment doesn’t apply to non-Article I, Section 8, clauses 15 & 16 Militia purposes.

Still, he can join the Army, which is what he SHOULD be doing. Shut up, Asshole, and just do it rather than run off at the mouth. Go to your recruiting office and ENLIST!

Second Amendment Fallacies from the Federalist blog

This came from an experiment I did to see if I received different results from the google search “Second Amendment standing armies” performed outside the USA. It came as no surprise that the non-US results provided more scholarly articles than the gun right related results one received in the US.

Of course, Nothing I haven’t been saying here before, but I still want to repeat this since it needs to be said:

Second Amendment Fallacies
By P.A. Madison on September 28, 2010

I wanted to take the opportunity today to add some late commentary over the court recent ruling in McDonald v. Chicago that extended the protection of an “individual right to possess a firearm unconnected with service in a militia” against state infringement which had been an open question since the earlier gun case of District of Columbia v. Heller. Specifically, I want to address obvious errors in the courts reasoning in supporting an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment.

Before I do, I want to add the disclaimer that I am not arguing for or against particular gun laws but only arguing gun laws, no matter how wise or foolish, are not in any way applicable to the Second Amendment. Owning a gun for personal defense is a far different principle from the keeping and bearing of arms as part of the military power of a State through a well-regulated militia that had always been compelled by State law.

The first error I’ll address is the one that treats the Second Amendment as though it confers a right directly to people of the States. The federal Constitution, and specifically the Second Amendment, did not confer anything to the people in terms of individual rights and freedoms for the simple reason they already possessed such rights through their own sovereignty under their own constitutions. It was the States with the approval of the people who gave to the new federal government and not the other way around.

Amendments were asked for and offered only to calm anti-federalists fears over future claims of power of national government to do such things as establish and compel worship to a national religion, enact laws of seditious libel, or disarm and replace state militias with a standing army, etc. The Second Amendment’s purpose was declaratory much like the Tenth Amendment. The principle it declares is that the security of a free people (State) is through a well-regulated militia for which the reason of keeping and bearing arms shall not be infringed because there can be no security in a standing army during times of peace.

Perhaps no one explained the principle behind the Second Amendment better than Tench Coxe when he wrote in the Pennsylvania Gazette, 1788:

The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths entitled and accustomed to their arms, when compared with any possible [standing] army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.

James Madison said standing armies during peace were “the greatest danger to liberty.”

One might argue the Second Amendment says nothing about standing armies but neither does the Third Amendment and historians agree it is rooted in the practice of maintaining a standing army during times of peace where law required people to quarter those troops on their property.[1] One of the things that made standing armies so odious was they lived among the people.

When early American patriots spoke of bearing arms they were talking about the safeguards of liberty through security of an armed and well organized citizenry in contrast to safeguarding their homes and families through a standing army and not any private right to own and use a gun. New Hampshire Governor John Page in June of 1841 explains these safeguards through an armed citizenry require efficiency through laws and organization:

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.

Pennsylvania Governor John Andrew Shulze said in 1829, “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.”

History shows all the States required by law those capable of bearing arms to do so, whether they were required by law to supply their own private arms or given public arms to use. Eventually all the States did away with compelling citizens to provide their own arms and instead armed their militias with public arms. When Tench Coxe once spoke of “private arms” he was referring to his own State of Pennsylvania law that militia members provide themselves with their own musket, else the fines for missing muster days would be used to purchase a musket for those unable to provide their own.

Armed militias of the citizens served as a vital function of providing a community with an armed police force when needed since there were no established police forces in early America that could respond to such events as rioting mobs. Framer James Wilson’s home was surrounded by an angry mob of 200 (some armed) in 1779 that required the calling out of the militia the following morning to disperse.

The bearing of arms was never considered a fundamental right of individuals to personally keep and use firearms but rather viewed as a civic duty, an obligation of citizenship in the same breath as casting a ballot or jury duty. One of the early arguments against granting suffrage to woman was it could lead to the obligation of them bearing arms. Proof of the civic function of bearing arms can be found in the denial of citizenship under former naturalization laws when potential new citizens refused to take an oath to bear arms.

The United States in July of 1863 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.

The court calls “explicit evidence” the words “constitutional right to bear arms” under §14 of the Freedmen’s Bureau Act that the 39th Congress viewed the right to keep and bear arms as a “fundamental right.” However, the insertion of these words was in response to the arming of all white militias within former Mississippi that excluded blacks. In other words, §14 of the Freedmen’s Bureau Act actually supports arms of the citizenry under a well-regulated militia rather than an individual right to arms outside of the service of a militia.

It is important to note the Freedmen’s Bureau Act was limited only to former rebel States that were then under United States military jurisdiction which in return made the Second Amendment applicable under any laws made by Congress while administering law within these former States.

This fact became very apparent with an act of Congress on March 2, 1867 that disbanded all the armed militias within former rebel States, leading to the charge Congress was infringing citizen’s right to keep and bear arms. President Johnson called the disbanding of the militias as “contrary to the express declaration of the Constitution, that ‘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.’” In other words, it was the people who bear arms that were the well-regulated militias that provided for the security of a free State.

The majority makes a bizarre claim that the Civil Rights Act of 1866 “similarly sought to protect the right of all citizens to keep and bear arms” as the Freedmen’s Bureau Act did, even though the Civil Rights Act made no mention about bearing arms. The majority tries to slink around this inconvenience by suggesting the words “the right … 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” was understood by some to include bearing arms.

How did the majority come to this wild conclusion?

They think Sen. Lyman Trumbull suggested the Freedmen’s Bureau Act would have protected the right to bear arms without the words “constitutional right to bear arms” inserted. In reality, all he said was the insertion of “constitutional right to bear arms” under the Freedmen’s Bureau Act had no “material effect” to the already existing section.

The Civil Rights Act of 1866 is a bad act to cite since its author, Sen. Trumbull, said it was only intended to enforce the privileges and immunities of citizens in the several States under §2 of Article IV, so “that a citizen of Massachusetts” could seek vindication or enforcement of a right in South Carolina courts. In other words, it isn’t horribly relevant since it was never viewed as advancing any personal rights under federal amendments to citizens under their own State.

Conclusion

Because all States compelled by law individual males of a certain age to keep arms (or arms were required to be stored in public armories) to bear when called upon to do so, dispels the idea of bearing arms was seen as a fundamental right for individual’s to own and use firearms outside of militia service. Instead, bearing arms was viewed as an obligation of citizenship in the service of the militia for both State and community defense and not anything to do with private firearms for personal use.

The declaratory principal found under the Second Amendment lies today in a dormant state due to the fact States no longer maintain and compel their citizens to serve in armed State militias as part of the security of a free State.

[1] Editorial comment: Not really true, There are drafts of the Second Amendment and other contemporary documents which make it quite clear that the existance of the militia was to prevent the establishment of a standing army.

I’ve always been curious about the existence of Left Wing militias

I was over at Common Gunsense and saw that Sean was upset that MSNBC’s  Dylan Ratigan & Ted Rall were discussing “armed revolt”.

Wait a minute, isn’t that what the “pro-gun” crowd runs around saying?

There is a serious problem with the insurrection theory of the Second Amendment and that is who defines tyranny?  In this case, Rattigan and Rall are much closer to what the founders meant when they talked about “Tyranny” when one reads the primary sources.  For example, the “Federal Farmer” wrote a series of letters that were published in the Poughkeepsie Country Journal in late 1787 and early 1788. In his third letter, he lamented that under the new Constitution Congress “will have unlimited power to raise armies, and to engage officers and men for any number of years.” He then voiced his objection to standing armies:

I see so many men in American fond of a standing army, and especially among those who probably will have a large share in administering the federal system; it is very evident to me, that we shall have a large standing army as soon as the monies to support them can be possibly found. An army is not a very agreeable place of employment for the young gentlemen of many families.

He also stated in his thirteenth letter that “we all agree, that a large standing army has a strong tendency to depress and inslave the people.”  It was a universal sentiment that standing armies were inimical to liberty and that any military force needed to be under civilian control.  Don’t take my word for it, read the primary sources.

Has the pro-gun crowd noticed the significance of military spending in the federal budget?

Gun control flourishes when there is discussion of armed revolt by the common man to take power from the wealthy.  For example, National Guard armouries were built in the United States during the 19th Century to prevent actions such as Shays’ Rebellion, John Brown’s Raid on Harper’s Ferry, and The Black Panthers.  The British Firearms Act of 1920 was directly influenced by the Russian Revolution.  Not to mention the Constitution was a response to Shays’ Rebellion. I can imagine that a contemporary arming of the left will suddenly bring about calls for gun control.

Of course, the realisation that the Second Amendment does not invalidate Article III, Section iii of the constitution and that there are peaceful methods for effecting change may cause some “Second Amendment” supporters to come to their senses.  But I seriously doubt it.

Instead, they will become upset that the left can parrot the rubbish about soap boxes, ballot boxes, and ammo boxes.

“Censored” by Japete

Yep, she didn’t post the entire version of this: although I have edited this:

I have read the entire Miller decision.

First off, the quotes are not mine, but Supreme Court Justices, which Anon keeps neglecting to mention. Perhaps, this is due to the fact that he knows the law better than two of the longest seated Supreme Court Justices: Douglas and Stevens. I should be flattered that anon believes my legal acumen is on par with these two justices, even if that is only through his ignorance.

Anyway, The Miller Court said:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The problem is that anon quotes dicta which doesn’t really help his position.  Yes, you have a right to a weapon if that weapon is to be used as part of militia service. So, this ends up being fallacious reasoning.  His position is that non-militia weapons are covered, which is something that cannot be inferred from the above passage from the Miller decision.

Likewise, Anon is neglects to address this statement from Miller:

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Both Justices Stevens and Douglas refer to the above quotes, which Anon discounts as being insignificant and not worth mentioning in preference for something noting that those serving in the militia were expected to bring their own arms. That is a fairly meaningless statement since that quote tells us nothing of private, non-service weapons. So, we see that the quotes from Miller address the issue of weapons having a “reasonable relationship to the preservation or efficiency of a well regulated militia” and no non-militia purposes.

Likewise, the reference to Aymette, 21 Tenn. (2 Hump.) 154 (1840), which Justice McReynolds was familiar since he taught at Vanderbilt, brings up the following:

But a prohibition to wear a spear concealed in a cane, would in no degree circumscribe the right to bear arms in the defence of the State; for this weapon could in no degree contribute to its defence, and would be worse than useless in an army. And, if, as is above suggested, the wearing arms in defence of the citizens, is taken to mean, the common defence, the same observations apply.

To make this view of the case still more clear, we may remark, that the phrase, “bear arms,” is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, “that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law.” Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

In short, McReynolds is referring to a decision from the Tennesse Supreme Court which held that “to bear arms” had a military significance and did not refer to non-military uses when he refers to Aymette.

Anonymous quotes a portion from the dicta which deals with historic events, not the state of the law when Miller was written.  That portion hardly makes my position “bankrupt” since anon does not address the above comments that there needs to be some nexus between the weapon and preservation or efficiency of a well regulated militia for the Second Amendment to apply and that the term to “bear arms” refers to military use. In fact, when read in its entirity, Miller backs up my position.

Anon’s choice of passage from Miller’s dicta hardly makes my position “intellectually bankrupt”.  If anything, Anon demonstrates a lack of knowledge of the Miller decision by neglecting the above passages from that decision which is further buttressed by his contradicting the Justice Douglas quotation from Adams v. Williams, 407 U.S 143, 150 -51 (1972):

A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

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.

Note Justice Douglas quotes Miller: 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.”

Of course, Anon is saying that several Supreme Court Justices, including the one who wrote the Miller decision, did not understand that decision. Anon’s statements dismiss experienced legal minds on the basis of ignorance as well as faulty reasoning. This demonstrates an astonishing level of self-belief in his knowledge of law. It suggests that, by instinct or by birth, he knows more about this subject (since he shows no sign of ever having studied it) than the supreme court justices who have spent their careers working in that field.

Likewise, if he is going to tell me that my position is “intellectually bankrupt” he had better come up with better references which contradict the ones I have given above. If anyone’s position is “intellectually bankrupt”, it is anon’s as he is arguing with legal minds far better than mine. I’m not sure what his point is since he ignores that fact and demonstrates a superb form of ignorance.

Quite frankly, Anon would do well to think before speaking unless he enjoys showing himself to be a fool by saying that two of the longest seated Supreme Court Justices (one of whom was on the Miller Court) have an “intellectually bankrupt” interpretation of the Miller decision.

Militia Training Day

These are both of the paintings I mentioned in my The Second Amendment in Art! post. The first is:

Militia Training by James G. Clonney (1812 – 1867). This is the painting found at the Pennsylvania Academy of Fine Arts.

Charles Henry Granger’s Muster Day is in the National Gallery in Washington, DC.

Charles Henry Granger’s Muster Day

If you saw a blind, three legged, 29 year old horse win the derby…

you’d say the race was fixed.

On the other hand, I’m rather amazed at the people who are praising the Heller-McDonald decisions. For example, The Brady Organisation which will happily point out that the decision doesn’t preclude reasonable regulations.

In fact, the Second Amendment protects a civic right, that is it is supposed to ensure that the Article I, Section 8, clause 16 militia remains armed and has fuck all to do with “”gun rights”. But, you small minded fucks need to get it through your thick skulls while that concept means the Second Amendment doesn’t preclude a gun ban: It also means that Kennesaw Georgia can force people to buy a gun (although, that sort of law could run afoul of the First Amendment).

The Civic right interpretation was the law of the land up until 26 June 2008. And, quite frankly, you can argue that it still remains the law of the land since the Second Amendment has not been properly amended, thus the Supreme Court acted ultra vires in producing this decision.

But, that’s not my point. My point is that Walter E. Dellinger argued worse than any first year law student despite his background, although one of the themes in this blog is that the US legal education system sucks. Still, you’d think that someone of Dellinger’s experience would pound in:

Stare decisis: Dellinger had the accepted interpretation of United States v. Miller, 307 U.S. 174 (1939) which he mentioned as:

The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

Unfortunately, Dellinger appears to have been poorly studied in the history of the Second Amendment and its relationship to Standing Army question. Additionally, He was unaware of Shays’ Rebellion, which were the farmers who were on the framers’ minds: not the ones of dime novel ilk that were on Justice Kennedy’s.

There are enough quotations which show that the issue related to that of the Article I, Section 8, clause 16 militia to have sunk any suggestion that there was a private right.

The other aspect which would have strenghtened Dellinger’s argument was the rule of constutitonal interpretation that I keep hammering upon:

None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.

And while we are at it: nowhere in the Second Amendment can one find the words which allows for “the people” to own arms for personal defence. Again this goes to the rule of construction that no phrase is without meaning. Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.

Self-defence is not mentioned in the Second Amendment (or the US Constitution).

Justice Stevens’s dissents in Both Heller and McDonald pointed out that was “a strained and unpersuasive reading” which overturned longstanding precedent, and that the court had “bestowed a dramatic upheaval in the law”. Stevens also stated that the amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense” which are present in the Declarations of Rights of Pennsylvania and Vermont. The fact that these decisions were 5-4 means that the Civic right interpretation isn’t dead, just dormant.

But the other side was just as lame as Alan Gura’s argument demonstrates:

MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to —
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

Now, if you are going to say that the first clause has no effect, which the Five fools do, then one is left with:

the right of the People to keep and bear arms shall not be infringed.

It is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. Or to quote the RKBA folk:

What don’t you understand about “Shall not be infringed”.

Of course, the court’s construction and interpretation, again violates the principle about the use of the word “shall” since in this context the phrase is now discretionary.

We can get into the fix is in part of this in that the Court could have made Gura and his ilk look like idiots since they construct the phrase to be both discretionary and the first clause to be without effect. So, not only are they asking for Miller to be overturned, they are also asking that long standing rules of Constitutional interpretation be ignored.

Anyway, by ignoring the language “A well regulated militia being necessary to the security of a free State”, we should now have a right which allows for the personal ownership of weapons of mass destruction: let alone machineguns. Any Justice worth their salt should have brought this up (Sorry, that includes you, Justice Stevens).

The problem is that the gun loon crowd act like Pavlov’s dog and salivate when they hear “gun rights” and “individual right”, but don’t really understand what exactly is going on here and how they have been the ones who were fucked. That’s slightly less so from the “antis”: although I’m sure we would be hearing about it if they felt truly fucked over . The Heller-McDonald Supreme court decisions talk of “presumptively lawful regulatory measures”, specifically name some, and then declare the list “is not exhaustive”.

In case you missed it or are too fucking stupid to have figured out what happened–here is the Heller-McDonald language:

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. Heller at 54-5

Which has as a footnote (26):

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

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “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.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

We can get into the watering down of the Second Amendment right, but that is something which comes from the territory of a judicial amendment of the document: it is whatever a judge says the right is.

True supporters of the Constitution should be appalled at the Heller-McDonald decisions for what it did to the Second Amendment. The even more amusing part is that Scalia has trashed everything that he claimed to believe in by putting his name to this piece of shit, although one can truly question what type of biased hack he is to have not recused himself from this decision. Better yet, one must question what he is doing as a Supreme Court Justice as his presence on the bench does nothing to dignify the institution.

One must decide the law based upon the law, not one’s personal biases.

Anyway, the fix is in and everybody got fucked: especially the Constitution.

And the big Hunh? Award goes to…

The Cato Institute from coming out with this piece: Gun Control Advocates Should Applaud the Supreme Court with the words:

This ruling does not necessarily invalidate all gun control laws, but it will likely mean the demise of outright bans and restrict significantly the ability of states and cities to impose other kinds of controls.

The problem is that gun bans, especially those enacted by local legislatures, should be an option and in no way infringe upon the “Second Amendment right” which is to be free of a standing army rather than to own weapons outside the context of militia service.

Even weirder is the comment that:

The most significant negative of gun control is distracting attention from policies like drug prohibition that play a far larger role in generating crime. So long as policy generates a demand for crime, policy can do little to reduce crime.

Now how likely is it that the prohibition on drugs will ever be lifted, and even if it is lifted, that the black market in drugs will be eradicated? After all, there are still people who make moonshine liquor to avoid paying taxes. So, if we want to get into it, there will always be an economic incentive for a black market in drugs if they are regulated.

and the Cato folks look at things in terms of money (rather than how it affects people).

The real amusing point is that the people who talk about Liberty have engaged in what would be considered the ultimate act of tyranny by the founders (invalidating local Laws, the most wholesome and necessary for the public good, by those who are neither elected nor citizens of that jurisdiction).

Anyway, the Cato Institute can act in the way that it does should show them for the disreputable weasels that they are.

And saying that “Gun Control Advocates Should Applaud the Supreme Court” is cause for those who believe that the Heller-McDonald cases vindicate their “rights” to be suspicious.

If they weren’t sheep.

Trying to explain things to complete dumbfucks…

This might help the clueless. Of course, the clueless can’t think. I am not sure why I am providing this because the person in question is as thick as pigshit.

In fact, the person in question shovels pigshit (or some other animal’s shit) for a living. Anyway.

Adams v. Williams, 407 U.S. 143 (1972)

1972, that means that the “collective right interpretation” of the Second Amendment existed prior to 1974, which thick as pigshit refuses to concede. Not that his opinions are worth much anyway. After all, this is is a fat, ignorant fuck who is proud to be a fat, ignorant fuck. He doesn’t see the inconsistencies in supporting “the Second Amendment, The Military, and Ted Nugent” is “pro-gun” while being “pro-life” and believes that global warming is a hoax.

verbum sapientum

Anyway, the facts of the case:

Acting on a tip supplied moments earlier by an informant known to him, a police officer asked respondent to open his car door. Respondent lowered the window, and the officer reached into the car and found a loaded handgun (which had not been visible from the outside) in respondent’s waistband, precisely where the informant said it would be. Respondent was arrested for unlawful possession of the handgun. A search incident to the arrest disclosed heroin on respondent’s person (as the informant had reported), as well as other contraband in the car. Respondent’s petition for federal habeas corpus relief was denied by the District Court. The Court of Appeals reversed, holding that the evidence that had been used in the trial resulting in respondent’s conviction had been obtained by an unlawful search.

Fourth Amendment search and seizure relating to a handgun

Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972)

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.

My views have been stated in substance by Judge Friendly, dissenting, in the Court of Appeals. 436 F.2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn. Gen. Stat. Rev. 29-35, 29-38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer’s tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

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.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.

“If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows `that criminal activity may be afoot.'” 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30.

Quick trivia question: What special characteristic about Justice Douglas might make him qualified to have special knowledge of the US v Miller decision?

You should know this if you’ve actually read US v Miller.

You have read US v Miller, haven’t you?

Anyway, as I like to point out Justice Stevens’ dissents in Heller and McDonald both keep the “collective right” alive, which David T. Hardy points out in the beginning of his Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent article (2010 Cardozo L. Rev. de novo 61):

District of Columbia v. Heller established that the Second Amendment’s right to arms existed as an individual right, with no requirement that the rights-holder be functioning as part of a well-regulated militia. While the majority opinion has been subjected to extensive review and commentary, the Steven dissent, joined by four members of the Court, has not. The dissent came within one vote of becoming the majority; it clearly merits close examination.

Had the dissent become law, the Court would have informed the American people, 70% of whom believed they had an individual right to arms, that their rights-consciousness was sadly mistaken.

I strongly disagree that Stevens’ dissents were based upon “based upon surprisingly thin reasoning and evidence.” If anything, Hardy demonstrates his ignorance of history, which I can bury him in proof. In fact, I am sure Hardy will use the usual half-quotations and misinterpretations that when read in their fullness show he is making a false assertion.

I’ll toss in this language from U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942) as proof that the “Collective right” interpretation was around well before 1974.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since [footnote 13] that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. [footnote 14] The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry [footnote 15] was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country, [footnote 16] where provisions similar in language are found in many of the State Constitutions bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since. [footnote 17] The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates. [footnote 18] The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. [footnote 19] Such a classification is entirely reasonable and does not infringe upon the preservation of the well regulated militia protected by the Second Amendment.

Of course, the only people who really care about this issue are the “gun rights” crowd.

On the other hand, had Stevens’ opinions been majority opinions, there would have been a lot of explaining. The people doing the explaining would be the liars who have been fobbing off this bogus “individual right” interpretation of the Second Amendment. Unfortunately, it doens’t take too much to play on the historic ignorance of the American public which takes myth for reality.

Fact is, the Heller-McDonald decisions created an “individual right” where one didn’t exist (please show me the language in the Second Amendment if it does) which is subject to strong regulation:

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. Heller at 54-5

Which has as a footnote (26):

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

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “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.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

Eventually, the word will get out: the Second Amendment right applies to the rights relating to well-regulated militias and the federal government’s powers under Article I, Section 8, clause 16:

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;

Maybe the Irish aren’t as dumb as we think they are

The Boomtown Rats came out with the Song “I don’t like Mondays” back in 1979 as a reaction to the mass shooting perpetrated by Brenda Spencer’s at the Grover Cleveland Elementary School. I mentioned this in a previous post When will the US wise up? after the Virginia Tech Shootings in 2007. It’s been over 31 years and gun laws in the US are getting weaker, not stronger.

The Irish Times has done it again by publishing an article Love affair with firearms won’t be quelled by mere statistics. Amazingly enough, this article raises the issues and asks all the questions which US MSM fails to address.

Not that the US media is totally ignorant of this since one can find How the NRA Rewrote the Constitution and Gun Control, the NRA and the Second Amendment. The dissent in DC v. Heller has kept the civic interpretation of the Second Amendment alive, maybe not well, but alive.

So, why does one have to leave the US to find and understanding of the Second Amendment? Especially amongst US high court Judges?

Essay question for guncretins/gun loons

Explain the Second Amendment in light of US Constitution Article I, Section 8, Clauses 15 & 16 and Patrick Henry’s Speech Below to the Virginia Ratifying Convention, 5 June 1788, Elliot 3:51–52:

A standing army we shall have, also, to execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a disciplined regiment? In what situation are we to be? The clause before you gives a power of direct taxation, unbounded and unlimited, exclusive power of legislation, in all cases whatsoever, for ten miles square, and over all places purchased for the erection of forts, magazines, arsenals, dockyards, &c. What resistance could be made? The attempt would be madness. You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.

Let me here call your attention to that part which gives the Congress 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.” By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither–this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.

Please realise that Henry was specifically addressing Article 1, Section 8, Clause 16 in responding to this question. He directly quotes that passage. I’ve highlighted that since I am pretty sure you would miss that bit if it weren’t in bold, underlined, large print.

Also realise that this passage supports the civic interpretation of the Second Amendment and any essay supporting a right to arms outside of the militia context will have to overcome that hurdle.

OK, if firearms were commonplace, why is Henry worried that the Federal government would fail to arm the militia? Wouldn’t that hint at scarcity rather than abundance? Also, by having the issue framed as failing to arm militia rather than confiscation, doesn’t that also hint at the issue being provision of arms to the militia?

If you wonder why I find the civic right interpretation far more credible than an individual right outside of the militia context, it is because I have yet to see an explanation of the non-militia right that does not address these historical FACTS.

What really annoys me about gun cretins…

is the fact that they want to come and tell you their point of view, whether or not you want to hear it. And I have heard it all before.

It’s pretty obvious that these people have not read or understood what I have written. It doesn’t make much sense for me to waste my time repeating myself.

Of course, they will hammer in what they want to say.

I am sorry, but I have examined the subject of gun rights far more extensively than you have and some of the alleged “Second Amendment Scholars” out there have as well. I find that any right to arms outside of the context militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16) does not exist in the Second Amendment. Such a right can be found in State Constitutions (yet another reason that “incorporation” is ridiculous), but not in the Federal Constitution.

Additionally, don’t come around here spouting shit you obviously haven’t read, or understood, since if you did read it, you would have realised it shows that I am correct in my assertions that the Second Amendment is related to militia service (that is the body set up under the authority of the US Constitution Article 1, Section 8, Clauses 15 & 16). Or worse, you mention something that is completely unrelated to the Second Amendment or its history that shows you have a lack of comprehension of the topic.

To be quite honest, any comments the founders made about the “right to keep and bear arms” is most usually tied to a comment about the evils of a standing army. Unless you are seriously suggesting that the US adopt a Swiss style military system, the Second Amendment is pretty much a dead letter. And by that, I mean that you are seriously willing to dedicate your time to training and service in such an institution, you do not have a right to keep and bear arms.

Complaint

Somebody tagged this blog “The History and Politics of Second Amendment Scholarship”, which really wasn’t my intent when this started. Somehow, I have become an “expert” in this field for the Civic Right side.

So it goes.

Collective or Individual?

Quick Answer for Sevesteen: gun rights are illusory in common law.

I have begun to dislike the terms “collective” and “individual” right in relation to the Second Amendment. First off, neither term really conveys what the right actually encompasses (in legal terms–it’s scope). Saying that the right is collective and belongs to the States isn’t really helpful. The right was intended to ensure that the Federal Government would not abuse its power to arm the militia under Article I, Section 8, Clause 16 to the detriment of the militia.

It shouldn’t come as a surprise that this subject is hard for the booboisie to comprehend since even Supreme Court Justices have difficulty comprehending that there was a difference between civic and private purposes. I mean the booboisie can’t comprehend comics, let alone complicated ideas. Also, “collective right” or “individual right” doesn’t really define what exactly was being protected. The State’s right to have militias? A personal right to own firearms outside of militia service?

That’s why the question that the Supreme Court allegedly was considering in Heller was:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violated the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Justice Stevens pointed out that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an“individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. Justice Stevens’s Heller Dissent p.1

This question was answered by US v. Miller, 307 U.S. 174 (1939) as:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

I paraphrase the dicta to make it comprehensible to modern minds as:

The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.

Despite what various sides say about the holding taking it from various portions of the early paragraphs. The actual holding is that: “We are unable to accept the conclusion of the court below and the challenged judgment must be reversed (i.e., that the National Firearms Act violates the Second Amendment). The cause will be remanded for further proceedings.”

Although it seems from the dicta that the Second Amendment right is best defined as a civic right in that it requires a “reasonable relationship to the preservation or efficiency of a well regulated militia” at least according to Miller, but not according to Heller which choose to ignore the method and precedent of Miller.

Although, As I read Miller, the proper answer to the Question in Heller was “no” for a multitude of reasons. The Heller court had other dilatory tactics if it couldn’t give the proper answer, but I digress…

The Founders came from the common law tradition and didn’t totally reinvent the wheel when it came to the nascent US legal system. That means the law of the United States was originally largely derived from the common law system of English law, at both the federal and state levels. Weapons related to militia service enjoyed greater protection and were not subject to the same level of regulation as personal arms in the early republic. The right to keep arms for civilian purposes was not removed from the sphere of the State’s legislative power, it was subject to the full scope of the state’s police powers.

As anyone familiar with Common law developments regarding gun regulation will tell you, there are no “gun rights” in other common law jurisdictions even though they all have the militia tradition to some extent or another (E.g., Australia, Canada, and the United Kingdom). Other Common law based jurisdictions are quick to ban personal firearm ownership after gun massacres.

For example, when Martin Bryant killed 35 people and wounded 21 others in Port Arthur, Tasmania. Both federal and state governments, some of which (notably Tasmania itself and Queensland) were opposed to firearm control, quickly took action to restrict the availability of firearms. It should be noted that the Tasmanian state government initially attempted to ignore this directive, but was subsequently threatened with a number of penalties from the federal government. Though this resulted in stirring controversy, most Government opposition to the new laws was silenced by mounting public opinion in the wake of the shootings. Under federal government co-ordination all states and territories of Australia banned and heavily restricted the legal ownership and use of self-loading rifles, self-loading and pump-action shotguns, together with considerable tightening of other gun laws.

When Michael Robert Ryan, armed with two semi-automatic rifles and a handgun, shot and killed sixteen people including his mother, and wounded fifteen others, then fatally shot himself in Hungerford, England. The massacre led to the Firearms (Amendment) Act 1988, which banned the ownership of semi-automatic centre-fire rifles and restricted the use of shotguns with a magazine capacity of more than two rounds. The Hungerford Report had demonstrated that Ryan’s collection of weapons was legally licensed.

The Dublane Massacre where Sixteen children and one adult were killed led to the Firearms (Amendment) (No. 2) Act 1997 being passed. This means that as of 1997 handguns have been almost completely banned for private ownership in Great Britain. Exceptions to the ban include muzzle-loading “blackpowder” guns, pistols produced before 1917, pistols of historical interest (such as pistols used in notable crimes, rare prototypes, unusual serial numbers and so on), starting pistols, pistols that are of particular aesthetic interest (such as engraved or jewelled guns) and shot pistols for pest control. Under certain circumstances, individuals may be issued a PPW (Personal Protection Weapon) licence. Even the UK’s Olympic shooters fall under this ban; shooters can only train in Northern Ireland, the Channel Islands, the Isle of Man, or abroad.

Compare the reactions from Australia and Great Britain to the Circle Jerks that occur in the United States after mass shootings and other examples of mayhem caused by firearms. People are so frustrated that they don’t even bother to mention gun control. Maybe if someone wipes out an entire city

Likewise, Early commentators in the US saw the difference possession for the common defence and personal uses. For example, the following passage is often cited by “gun rights” advocates to buttress their position:

7. “That the people have a right to bear arms for the defense of themselves and their own State, or theUnited States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies
in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”
“The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents (December 18, 1787), reprinted in Pennsylvania and the Federal Constitution, 1787-1788, p. 422

This is because the private purposes of “defense of themselves” and “killing game” is mentioned. The problem is that the public can be disarmed for “unless for crimes committed, or real danger of public injury from individuals”. This raises a few questions in my mind such as how strongly are the private purposes protected in light of “real danger of public injury from individuals”. I believe that the fact that private purposes are mentioned in this passage, but aren’t in the text of the Second Amendment shows that the Second Amendment should not include those purposes under the maxim of Statutory Interpretation Expressio unius est exclusio alterius (The express mention of one thing excludes all others).

Additionally, we have this quote showing a difference between use for the common defence and personal uses from ratification times.

The Bill of Rights secures to the people the use of arms in common defense; so that, if it be an alienable right, one use of arms is secured to the people against any law of the legislature. The other purposes for which they might have been used in a state of nature, being a natural right, and not surrendered by the constitution, the people still enjoy, and [may?] continue to do so till the legislature shall think fit to interdict. “Scribble Scrabble,” Cumberland Gazette, January 26, 1787; “Scribble-Scrabble,” ibid., December 8, 1786

The right to keep and carry firearms was one of the issues in Commonwealth v. Selfridge (1806), the most important murder trial of the early republic that began to change the need to retreat in self-defence situations. In this case, Selfridge’s lawyer conceded that “every man has a right to possess military arms” and “to furnish his rooms with them.” Yet the defense also recognized that the ownership and the use of non-military weapons were not constitutionally protected. Rather than assert a constitutional claim, the defense framed a common law argument on behalf of his client. Selfridge’s attorney argued “there is no law written or unwritten, no part of the statute or common law of our country which denies to a man the right of possessing or wearing any kind of arms.” Given this fact, it was indisputable that “in every free society a man is at liberty to do that which the law does not interdict, nor can the doing that which is not forbidden be imputed as a crime.” Therefore, the acquittal in the Selfridge case made perfect legal sense since Selfridge had not broken any law.
Trial of Thomas O. Selfridge, attorney at law, before the Hon. Isaac Parker, Esquire, for killing Charles Austin, on the public exchange, in Boston, August 4, 1806 by Thomas O. Selfridge, Published by Russell and Cutler, Belcher and Armstrong, and Oliver and Munroe (Boston) 1807.

Likewise, there are other instances where it is made clear that States legislatures could regulate firearms for personal uses

The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defense. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.

To hold that the legislature could pass no law upon this subject, by which to preserve the public peace, and protect our citizens from the terror, which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil, of infinitely a greater extent to society, than would result from abandoning the right itself. Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840).


Aymette is quite clear on the difference between the use of arms for Common defence and personal uses.

So, to recap on how to tell what is being discussed:

Civic context:
Basic gist: the right is better defined as a civic right in that it requires a “reasonable relationship to the preservation or efficiency of a well regulated militia” that is the body organised under Article 1, Section 8, Clause 16 of the Constitution.
The test is: does it contribute to the common defense? “How will your militia be armed?”
Key words to clue you in: “subject to militia duty”, “Common defence”, security, free State, discipline, standing army, system of defense, general obligation, military duty, etcetera

Personal uses:
personal non-military use, not related to the common defence.
Test: is the use military in nature or related to the common defence? If the answer is “no”, then this is a private use.
Key words to clue you in: “defense of his home, person and property”, family, hunting, recreational use, purpose of killing game, private use, etcetera.

Anyway, if one goes to the primary sources such as Patrick Henry’s comments in regard to the Constitution, one finds a direct reference to the Federal power over the militia in relation to the Second Amendment and the need to preserve state militias from Federal interference.

Patrick Henry, Against the Federal Constitution (June 5, 1788) Argument IV: against the standing army Constitution: Article I Section 8

8.1 You will find all the strength of this country in the hands of your enemies; their garrisons will naturally be the strongest places in the country. Your militia is given up to Congress, also, in another part of this plan: they will therefore act as they think proper: all power will be in their own possession. You cannot force them to receive their punishment: of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.
9.1 Let me here call your attention to that part which gives the Congress 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.”
9.2 By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither—this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression.

or Patrick Henry’s “That every man be armed” speech found at The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot’s Debates 384-7), Virginia, Saturday, June 14, 1788. Page 386-7
. . .

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…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, endeavoured 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.

Additionally, even though Story is cited as being for an individual right, we find him bemoaning the “growing indifference to any system of militia discipline”

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. Joseph Story, Commentaries on the Constitution 3:§ 1890

Again, we find that when we use the primary sources to examine the quotes used to show an “individual right” we find a distinct civic tone. Why would one need “some organization” if the right belongs to individuals for non-common defence purposes?

Anyway, there are loads of examples of a guarantee of arms for private purposes in State Constitutions. Although, I find it interesting that some of these personal rights are recently granted, such as Delaware’s from 1987, Nebraska’s from 1988, and the change in language between Idaho’s provision from 1978 compared to the language from 1889.

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).
Delaware: A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).
Georgia: The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne. Art. I, § 1, ¶ VIII (enacted 1877, art. I, § XXII).
Nebraska: All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and 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. Art. I, § 1 (right to keep and bear arms enacted 1988).

Idaho: The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony. Art. I, § 11 (enacted 1978).
1889: “The people have the right to bear arms for their security and defense; but the Legislature shall regulate the exercise of this right by law.” Art. I, § 11.

I find the more research I do with primary sources on this subject, the more it becomes apparent that the founders saw a difference between civic and personal uses of firearms. The Civic right was that covered by the Second Amendment with the private uses being subject to common law and the police power of the States.