Second Amendment Fallacies
by P.A. Madison on September 28th, 2010
Summary: The Federal Second Amendment reaffirms the right of the States to maintain well-armed militias for security of a free State for which is the purpose of the right of the people to keep and bear arms with the goal of rendering standing armies unnecessary.
I wanted to take the opportunity today to add some late commentary over the recent court holding 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 the obvious errors of fact in supporting an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment in both decisions.
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 purposes is a different purpose of maintaining well-regulated militias through an armed citizenry, which has always been compelled by law and punished for refusal.
Additionally, State courts rulings will be given little weight for the reason State courts have a history of inconsistent interpretations over the extent of “bear arms” found in their constitutions.
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 bill of rights, 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 (in return preventing the “free exercise” of religion), enact laws of seditious libel, or disarm and replace State militias with a national standing army, etc. George Mason complained “[t]here is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.” Thomas Jefferson also complained of a missing security against the threat of a standing army to Madison.
Tench Coxe remarked about the “apprehensions of the people have been excited, perhaps by persons with good intentions, about the powers of the new government to raise an army.” James Madison said standing armies during peace were “the greatest danger to liberty.”
At the time of the adoption of the Constitution, at least half the states included a declaration that said standing armies during peace were dangerous to liberty and ought not to be maintained alongside the constitutional right to bear arms. Example: Vermont, 1777, “that the people have a right to bear arms, but no standing armies shall be maintained in time of peace.” Other common examples were: “The people have a right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated.”
The Declaration of Colonial Rights of 1774 laid out fundamental rights belonging to Americans, such as trial by jury, right to assembly for petition of redress of wrongs, entitlement to all the immunities and privileges granted and confirmed by royal charters and entitlement to life, liberty, and property. Nowhere was there any mention of any private right for people to own a gun.
However, the Declaration of Colonial Rights does mention standing armies three times; making clear the keeping of a standing army in the several colonies in time of peace was “against law.”
Perhaps no man explained the relationship between the Second Amendment and standing armies better than William Barnes did during the 1878 Constitutional Convention of the State of California:
In addition to that, I find in article two a declaration that a well regulated militia, being necessary to the security of free States, the right of the people to keep and bear arms shall not be infringed. Now, we know that this question was considered a very important one in the early organization of the government, and it is no less important now than it was then, because the people had their choice then as they have now between a well organized State militia in the several States and a standing army maintained by the central government, which, under our system of republican institutions, has always been considered an enemy to liberty, and when the people had their choice between maintaining a large standing army, maintained by the General Government as the great armies of Europe arc maintained, at a vast cost to the General Government and to the people, they determined upon the plan which now exists, that is to say, to provide for the organization and equipment of a militia force.
Coupled with the denouncement of standing armies, and the fact State constitutions only speaks of bearing arms for purpose of “defense,” makes clear State arms-bearing provisions were designed to place the defense of the State in the hands of the people themselves in order for there to be no justification for maintaining standing armies where soldiers could have no allegiance ties to the State.
This all goes to the very heart of the question over the extent of the Second Amendment because as the court in Heller states, the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
If the right did not exist in the Declaration of Colonial Rights it must had existed later in the States. However, none of the State constitutions makes any mention of a private individual right to own or carry guns. They all addressed the right to bear arms for the sole purpose of “defense” of the State or “the people” in an aggregate sense while silent on any other purpose of using arms.
On the other hand, the federal Second Amendment does not refer to bearing arms for defense, or more specifically, personal self-defense, but only bearing arms for purposes of a well regulated-militia as part of security of a Free State as opposed to a standing army for this purpose.
If all bearing arms is a right to personal self-defense one must wonder why other self-evident, and equally important, personal rights were omitted.
Additionally, if the Second Amendment was intended only to address individual rights to keep firearms for personal defense the Constitution would had been rendered void of any security against standing armies, something that was causing apprehension and demand to be included in new amendments that Madison eventually offered. 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 (farmers/landowners collectively) 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.
Note Coxe says it is the “militia” Congress is not to “disarm” and not individuals of their private arms.
Coxe writing in 1787 as “An American Citizen,” pointed out the people are the militia and because of this, troops would be rendered unnecessary: “The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them — for our detached situation will seldom give occasion to raise an army.”
Because Coxe makes clear it is the people in the capacity of soldiers in service of the militia who are “entitled and accustomed to their arms,” the Second Amendments right to bear arms can only mean those arms born by the people in service of the militia for the purpose of making standing armies during peace “unnecessary.”
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. One of the things that made standing armies so odious was they lived among the people.
New Hampshire Governor John Page in June of 1841 explains the bearing of arms as part of the military power of the State through an armed citizenry:
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.”
The above two quotes illustrate the military connection with the right to “bear arms.” How can we be sure? States never used the phrase “bear arms” in their civil codes when addressing private gun ownership and usage but only when speaking of their military use through organized militias of the people for purpose of defense of homes, communities and State.
The Heller court attempted to get around this damaging fact by trying to find statutes that used the phrase “bear arms” outside of a military context. They utterly failed, offering only three obscure examples from early colonial times by declaring, “these purposive qualifying phrases positively establish that ‘to bear arms’ is not limited to military use.” Example by the Heller court:
For example, an early colonial statute in Massachusetts required every “freeman or other inhabitant” to provide arms for himself and anyone else in his household able to “beare armes”. . .
If the majority had quoted the entire above statute it would had destroyed their false assertion because it specifically said the purpose of bearing arms was “for war” and not personal defense. The majority brings up an early Virginia code requiring “all men that are fittinge to beare armes” to “bring their pieces” to church. This was a militia act due to war with the Indians at the time and not anything that could be construed to mean “bear arms” in a non-military context.
Suffice to say the majority was unable to find any relevant civil codes referring to “bear arms” outside of service in the military, though they found an un-enacted phrase from Madison in Virginia of “bear a gun” for deer preservation. Bearing a gun (singular) and bear arms (plurality) is two different things.
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 when the US begun supplying the States with US arms. 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 (“private arms”) at the time, else the fines for missing muster days would be used to purchase a musket for those unable to provide their own.
This early Pennsylvania requirement was not for keeping private arms for game or home defense but to bear in service of the Pennsylvania militia.
It is difficult to conceive how a mandatory duty to keep and bear arms by law for which a person could be fined or jailed for refusing can be elevated to an individual freedom beyond the regulation of law.
Armed militias of the citizens served the vital function in providing communities 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. This is why we find many State constitutional provisions for citizens to bear arms in defense of themselves (aggregate/community) or the State.
Framer James Wilson speaking of the constitutional right of the citizens to bear arms in the defense of themselves shall not be questioned under the Pennsylvania Constitution, said, “[t]his is one of our many renewals of the Saxon regulations,” and that “one may assemble people together in order to protect and defend his house.” No question Wilson was speaking from personal experience after having in the year 1779 to collectively defend his home along with 34 others from 200 angry protesters who opened fire, killing two who were inside.
Wilson and his fellow defenders were only able to hold off the mob long enough for the militia to be called out the next morning through resupplying themselves with lead and gunpowder kept at a nearby public armory they managed to visit during the night.
Thus, Wilson is talking about the renewal of Assize of Arms as established under King Alfred, where his subjects were compelled to become united under sword for the common defense of their family, neighbors, parish and realm. Without such a united defense, no single man with a musket could have been able to defend either themselves or home against a mob of 200 people.
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 such things as the application for citizenship that asks, “are you willing to bear arms on behalf of the United States?”
Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”
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 in 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 they assert the 39th Congress viewed 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 law made by Congress while administering 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.’”
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 with the Civil Rights Act having nothing to do with any personal rights outside of the administration of justice?
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 the “constitutional right to bear arms” would had no “material effect” to the already existing section.
So then, the majority unwisely jumps to the conclusion the Civil Rights Act of 1866 must also had been intended to secure the “constitutional right to bear arms” even though it made no mention of the right.
Trumbull said his Civil Rights Act of 1866 “neither confers nor abridges the rights of any one, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishments.”
Another bizarre claim the Heller court makes that is worth mentioning was with asserting the provision of the English Bill of Rights that read, “the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law,” was “clearly an individual right, having nothing whatever to do with service in a militia.”
Actually it had everything to do with service in the militia. The Duke of Ormond had formed an all Irish Militia and provided Protestants who served in his militia with arms. James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641. Meanwhile, Papists were allowed to remain armed and employed in militias contrary to the law of the time.
The Manuscripts of the Marquess of Ormonde, 1678, shows the proposal of arming Protestants was to “enable Protestants to withstand and defend themselves against any Papists whatsoever that should come with commission and bear arms in any military employment, and to dispense with those laws that at present made it rebellion so to do.”
Conclusion
With all the States compelling people by law to keep and bear arms and imposing penalties for failure to do so, proves beyond any doubt the bearing of arms under the Second Amendment is indeed connected to service in the militia. The additional fact that there were no demands for new amendments to the federal Constitution for any private right of individuals to own a gun but only demands for security against standing armies is further proof the Second Amendment was adopted for the sole purpose of securing citizens right to bear arms in service of well-regulated militias of the States that made standing armies unnecessary.
The Second Amendment acknowledges the ancient principal that says a free people can only remain free when people are able to collectively provide for their own defense instead of professional armies that could become a tool of despotic rulers. The “right of the people” in the federal Constitution is used only in a collective recognition sense due to the fact the federal Bill of Rights had no force of law upon individuals themselves within their own sovereign States.
Did the Fourteenth Amendment incorporate the Second Amendment?
Both Rep. John A. Bingham and Sen. Jacob M. Howard said no because as Howard put it, only those first eight amendments that secure personal rights “to the citizen solely as a citizen of the United States and as a party in their courts.” The Second Amendment, nor the First Amendment for that matter, secures no personal rights to citizens as parties in any court of law. Only the Fifth, Sixth and Eight Amendments do that.
Additionally, there is no “history, legal traditions, and practices” of treating “bear arms” as a fundamental right of individuals unconnected to service in the militia, makes the Second Amendment a bad candidate for incorporating private gun ownership under the judicial theory of substantive due process.
And finally, this declaratory principal found under the Second Amendment lies today in a dormant state due to the fact States no longer compel their citizens by law to bear kept arms in State organized militias for security of a Free State.
Pretty damaging the court could find no common usage of “bear arms” in public statutes that dealt with non-militia matters.
Yep, bearing arms as part of a well-regulated militia never meant owning arms for personal defense or sport (people never needed a constitutional right for that) but only for purpose of defense through a people’s militia rather than through a much hated and denounced standing army.
Any notion that the 2nd amendment protects a right to keep a firearm for self defense is not supported. The founders would have thought such a right self evident. It would not have occurred to them that government would attempt to deny this right. The 2A was clearly referring to military weapons.
The individual/collective argument is completely erroneous. Obviously, without a collective right the guarantee is meaningless. The 2A clearly intended for individuals to keep their weapons and be free to bear them to train with.
Miller is very instructive in explaining the 2A meaning. If Mr. Miller was alive and represented, the NFA would have been found unconstitutional.
The interesting thing about these Coxe quotes is they are more supportive of the collective argument then the individual rights one. This strongly shows the RKBA crowd has been using Coxe in a false context.
The Second Ammendment doesn’t guarantee ANYTHING!
The right to self defense anywhere/anytime, to protect ones family and friends, and to secure his home and property by whatever means available, and against all comers, is a NATURAL RIGHT. The right and the duty, of every living being.
Even a cockroach has these rights and they were well understood by the framers.
There was great discussion as to incorporating the Bill of Rights into the Constitution for fear that someday they would be interpeted as a list of the rights of the People. In many cases these fears have become reality!
The Constitution of the United States was intended to limit the powers of the government, NOT THE RIGHTS OF THE PEOPLE.
Comments??
Weird, the Supreme Court today refused to hear a Second Amendment argument that it allows the carrying of a gun outside of a home for self-defense.
Does this mean the Second Amendment has been re-written to mean “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms at home, but not outside of the home, shall not be infringed”?
Or does it show the court is fully aware of the flaws of its Heller ruling?
I would be interested in learning why Thomas and Scalia discarded the fact the Second Amendment does not grant a right itself, and the fact the states have long not treated it as a personal guarantee protected against regulatory laws, thereby making it a poor candidate for substantive due process incorporation but nevertheless applied it as a substantive guarantee anyway. Neither of these justices are a fan of substantive due process incorporation and Scalia believing the privileges or immunites apporach is a dead end.
From the majority opinion in Heller:
SCOTUS did take into account that the second amendment did not grant a right. Moreover, the fact that the amendment protected a pre-existing right, rather than having created a right, works against those who did not wish to see the RKBA incorporated. Heller concerned federal laws and so incorporation was not an issue in that case, and in fact Thomas wrote separately in McDonald which did concern incorporation.
How could Heller be concerned with “federal laws” when you also said the 2A “did not grant a right”? If federal constitution grants no federal right to own guns for any purpose there can be no federal law on the matter. If it is a state granted right then states can restrict the right or remove it.
You also completely missed what Ken is asking. He is asking why, if it is an existing right that only exists in the states and the states never treated their constitutional arms-bearing provisions as an individual right to self-defense, but only as a right to bear arms as part of the security of a free state under state regulations. Because of this, it cannot transform bearing of arms to a personal right to own and use a gun that can be said is “deeply rooted in this Nation’s history and tradition” for purpose of incorporation because that isn’t what state arms-bearing provisions provided for. Current incorporation deals with personal rights (although incorporation is truly fabricated BS but that is how the courts currently views it), state arms-bearing provisions deals with state security.
How could Heller be concerned with “federal laws” because Washington DC is under control of federal government.
when you also said the 2A “did not grant a right”?
I said it , but SCOTUS said it more than hundred years before Heller. Do you not understand the difference between granting a right and quaranteeing not to infringe an already existing, already known and recognized right?
If federal constitution grants no federal right to own guns for any purpose there can be no federal law on the matter.
Really, that makes no sense.
If it is a state granted right then states can restrict the right or remove it.
You also completely missed what Ken is asking. He is asking why, if it is an existing right that only exists in the states
You must be aware that the Bill of Rights applied to the territories and DC, therefor the RKBA did not exist only in the states. Heller reaffirmed earlier court rulings which applied the BOR to the District of Columbia.
and the states never treated their constitutional arms-bearing provisions as an individual right to self-defense, but only as a right to bear arms as part of the security of a free state under state regulations.
Apparently Kentucky did not get that memo, See Bliss v. Commonwealth.
Because of this, it cannot transform bearing of arms to a personal right to own and use a gun that can be said is “deeply rooted in this Nation’s history and tradition” for purpose of incorporation because that isn’t what state arms-bearing provisions provided for.
James Wilson disagreed with your opinion of what the state right to arms provisions meant, so did the Kentucky court in Bliss(1820).
@Mike Hansberry:
Yes, but you agreed the 2A only recognized a existing right. There was no “existing” federal law that established a right for anyone to own and keep a gun at home in District of Columbia.
What does a old, single controversial state ruling that was later overturned through amending the KY constitution have to do with the federal 2A?
Aymette vs. The State blew off the holding in Bliss saying, “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.”
Wilson made it clear the Penn arms-bearing provision was linked to the “renewals of the Saxon regulations” linking it to arms and defense under a militia system. And again, the Bliss court was very unconvincing and blown off by another court. You really need new material, Mike.
GFR so completely wrong…..
Yes, and the “legislature [has] the duty of so organizing and disciplining the whole body of the citizens” in order for them to defend themselves collectively.
Keep thinking that smart boy.
That quote has nothing to do with bearing arms in a well-regulated militia but with civil laws for crime and punishment. Only Stephen Halbrook would be dumb enough to mention it in discussing bearing arms as part of the military power of a state.
Got it? (I doubt it but thought I’d ask)
Completely wrong
Just because the founding Fathers were primarily concerned with ensuring that the people had the means to overthrow the government if it became tyrannical, doesn’t mean that they were not concerned with the ability of the citizenry to use arms to defend themselves. Indeed more than one of the examples that you have selectively quoted specifically mentioned the need for the people to be able to defend themselves.
As for the rights of the states to ignore the second amendment – do they also have the right to ignore the first amendment? Of course not.
“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 nothing here that says that the second amendment restricts only congress – unlike the first amendment.
Finally: “Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
–Thomas Jefferson, quoting Cesare Beccaria in On Crimes and Punishment (1764).
Got it now?
Agreed. The bearing of arms was never spoken outside of service of the militia. This is where Heller committed fraud by suggesting otherwise. Gun rights should be gained through legislation and not through re-creating a new Second Amendment through wishful arguments.
Once again, we have an individual (no matter his/her title or background) making what would appear to be an authoritative statement on a topic already decided by the Supreme Court – as if this opinion actually means anything, especially when put up against the judicial knowledge and abilities of the highest court in the land. Obviously, quoting opinions and offering interpretations is weak tea compared to true jurisprudence.
It means something if it shows the court conclusion is erroneous. The court is known to come back and reverse itself years later after reconsidering the facts.
Wow, lots of people writing, but no one quotes the entire 2nd Amendment to the U.S. Constitution:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The simple fact is, there is no possibility of there even being a citizen militia if the people are disarmed and prevented from owning firearms. The same goes for being prevented from bearing those arms, too — there would be no militia if people were prevented from bearing arms.
That is the purpose of the amendment to prevent Congress from disarming the citizen militia that the states rely on for security. It isn’t aimed at states because they already guarantee the freedom and have the sole power over the matter of their security through a well-regulated militia.
Good point about “private arms” in Penn being a requirement of law and not of individual right to exercise outside of service in the militia like many assumed from Coxe’s remarks.
Shrink said:
Well if you don’t see it, I guess it isn’t there. Kind of the way Stevens’ and PA Madison treat the words “keep and” in the second amendment.
We agree on the word private denoting ownership, but I guess you refuse to see how ownership might be relevant, so I will repeat myself. Loaned arms could be taken back at the whim of the state, but private arms are owned by individuals.
Below you have misunderstood my post.
When I wrote
I was making the same point you are in regards to Coxe’s words supporting a Political Right, where we differ is that you fail to see the rest of the quote.(the people are confirmed by the next article in their right to keep and bear their private arms). Note that “the people” could not have been understood in the collective sense since the words “their private arms” indicate individual ownership, and of course that part of the quote makes a mockery of the argument that “bear arms” must only have been understood at that time as an idiom meaning to serve in the militia
My argument with PA Madison is that he often sees only what he wants to see. For instance PA Madison concludes his article(see below) with a ridiculous non-sequitur rather than actually dealing with evidence from the founding era of an individual right.
There is on old saying “we are all entitled to our own opinion, but we are not entitled to our own facts. Justice Stevens’ needs to be reminded that he is also not entitled to his own SET of facts
Coxe makes clear it is the people serving in the capacity of soldiers in the militia and that “private arms” used was a requirement of law and not private right to exercise individually. I won’t bother with the rest of your mischaracterizations of the article.
I think he is seeing only what history behind the amendment reveals.
In regards to individuals responsible for providing their own musket under Pennsylvania militia law: You missed the part of the Pennsylvania constitutional provision that controlled the bearing of those private arms in a “manner as may be directed by law,” further attaching a strong connection to bearing arms in the service of the the militia vs. private right outside of law of the militia.
Congress has no authority to tell the people of the states what they can own, use or grow. You don’t need the 2A to argue against federal banning of guns.
That view provides some heavy ammunition for reversing Heller and McDonald since it shows these rulings are premised on a false assertion of bearing arms being unconnected to service in the militia.
I think you made a strong case against the courts holding of an “individual right to possess a firearm unconnected with service in a militia.” Clear the court was out revise the Second Amendment to more of their liking other than engage in interpreting facts.
Woops. Messed up my quote brackets. Sorry. I’ll try again.
I appreciate the reply. After reading this several times, I can’t distinquish an appreciable difference between the two statements. Rest assured, what you said, is what I meant.
That being the case, after looking back at the article, I still agree that part one of the second ammendment was to protect the states’ rights to have melitias. But that was not the only reason. The ammendment goes further to clarify that in view of the “need for melitias”, individual citizens must have the right to own and use guns. So neither the state nor a standing national army can take away that right.
If the only goal of the ammedment is to prevent the disarmament of melitas by a national army, then the following scenerio could be easily concieved. The state of Tennessee decides to ban all privately owned guns (which is okay in view of the second ammendment, by the way I understand Mr. Madison’s logic). They keep lots of guns in a safe in every city hall. Then, when need arises they call on a populace who are completely unfamilar with weaponry to open up the safe and defend their homeland. That is obviously impossible as is the idea that a melitia could be maintained exclusively through state training and using state owned guns. Melitia’s, by their nature, rely on the fact that the members thereof are trained in use of their firearms through personal use. The melitia training may hone that skill, but the foundations are laid in a citizenry who own and use guns regularly.
The statements in the article agree.
I understand that states do not currently have melitia’s, and so the argument can be made that the right to bear arms is no longer valid. I disagree. The fact that we don’t currently have an active state melitia is true, but armed citizens constitute a reserve melitia that can be ready if needed with minimal training for service. This would not be the case if the citizens were not already in regular unofficial training through personal gun ownership and use.
So the need is stated in the second ammendment for a armed force, constituted not of a paid army, but of armed citizens, ready to defend against an aggressor. That need is not absent today, in spite of the absence of active state melitias. The only way to protect the right to form melitias is to protect the right of individuals to own and use firearms in their personal life.
Of course, I feel our clearest right to bear arms comes from the first two paragraphs of The Declaration of Independence, but, the second ammendment solidifies that fact, just as the first ammendment solidifies other individual rights.
Man, I worked hard on that comment. Why is it gone?
Anyway, I loved Mr. Madison’s analysis of the commerce clause, but this one on the second ammendment, I do not agree with.
I disagree with the assertion that the second ammendment was specifically written to guarantee the rights of the states to have a melitia.
The ammendment reccognizes the the legitimacy and neccesity of state melitias and then regognizes the fact that a melitia cannot be maintained if the citizens are not allowed to own and carry guns. The right to own and carry guns however is not limited to those in the melitia or even the current existence of a state melitia.
Probablly the blogs anti-spam or the blog was backed up with a older backup copy. Happened to me once on here.
No assertion was made that “the second ammendment was specifically written to guarantee the rights of the states to have a melitia.” The assertion made was it is a security against congress disarming the state militias that already existed and replace them with a national army.
Back then you didn’t have a freedom to keep and bear arms because it was required by state law and you could face penalties if you didn’t. Look at the two sample quotes above from Govs John Page and John Andrew Shulze.
Where does Scalia, a strict orginalist, think the original Second Amendment went? LMAO!
Great article explaining the purpose of the amendment without tortured revisionism.
The word “people” in the Second Amendment are the “militia” and vice versa. Really odd why folks think Tench Coxe quotes support an individual right outside of the militia.
@Brent:
Just like in all the other uses of “the people” throughout the Bill of Rights, right?
Are you disputing Tench Coxe?
Tench Coxes: “Who are the militia? Are they not ourselves?”
So, it would be entirely legitimate to read the fourth amendment as follows:
“The right of the militia to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
OIC. I guess we can just ignore the dozens of statutes on all the states books that mandated such things as drill days, type of weapons that must be kept and fielded when called upon to do so, whether you had to provide your own gun or was provided one at state expense, how much lead and powder to be stored, whether you were required to take a gun to church or not and the fines or jail time for non-complince. Yep, doesn’t sound like any government organzation to me
Then why wasn’t woman allowed to bear arms but were perfectly allowed to own and use guns? When new citizens were required to take the arms bearing oath did that mean they were required to go out and buy a gun to keep at home? The evidence of bearing arms in the military context is too overwhelming for the court to sweep under the carpet to pretend it means something else.
How come the NRA waited until 1974 to begin arguing the 2A might be a individual right?
Because the NRA had always been about hunting, shooting, safety and education. I think the NRA waited till the 80′s before they started to argue a right to own under the Second Amendment. The speeches I’ve read from Harlon Carter (Mr. NRA) in the 70′s never mentions the Second Amendment when arguing for gun rights.
Possibly because the anti-gun laws didn’t become onerous until 1974?
The NRA came out for individual guns right when Congress passed the Federal Firearms Act of 1968. It started with their new executive director Wayne LaPierre in 1977 start “the big lie” Second Amendment is individuals right to own firearms unrestricted. And as we all know you tell the big lie long enough people begin to believe. Such is Scalia and others; Scalia being a card carrying NRA member since he was 17.
It has always struck me as a bit funny that while nine of the Amendments of the Bill of Rights are clearly intended to protect the rights of individuals against government overreach…we still have some (too many, actually) who insist that the 2nd Amendment was inserted so as to confer a right on government itself.
(Sarcasm on.) Because, you know, conferring a collective right on a “militia” (rather than individual citizens) is entirely consistent with the right of free speech (1st), the right against unreasonable search (4th), the right against self-incrimination (5th), and the stipulation that the federal government is prohibited from doing anything NOT expressly authorized by the Constitution (10th). I’m sure Madison and the others paused in the middle of scribbling down these individual rights, and said, “Hang on. We need to make sure everyone understands the police and the army have the right to carry weapons. Just to clear up any confusion.” (Sarcasm off.)
Also, I hate to break this to the gun-grabbers, but “the militia” isn’t a government organization like the National Guard. It’s the whole citizenry, specifically able-bodied males 17 and older. Secondly, “well regulated” means disciplined and trained. It doesn’t mean “covered with lots of laws.”
The 2nd Amendment was clear from the word go, and two SCOTUS rulings have made it even more clear that it applies to individual citizens. Why there is still controversy on this point is a mystery to me.
But try explaining this to some gun grabber, and he’ll produce a strawman like, “So, this means I have the right to mount artillery on my pickup, then?” instead of arguing the point maturely and rationally.
In what way are they inconvenient, J.?
It would seem that the ‘citizens’ were indeed intended to keep and bear arms beyond those provided by the state. Otherwise, why was the practice permitted?
J. Aldridge says:
“The fact women were unable to “bear arms” but were free to purchase and own firearms is significant. You can bet pro-gun scholars and Roberts, Alito, Scalia, Kennedy, and Thomas want to avoid these inconvenient facts.”
I think he means inconvenient in proving “bearing arms” was specifically used in a military context rather than individual private context. The court struggled to show bearing arms extended beyond military service. History clearly shows they failed.
I suppose you can be “pro gun” without being pro individual right under the “Second Amendment” like Madison appears to be from his other writings. That’s cool with me.
@44 S&W:
Not a problem with me either. 100% sure Madison would argue Feds have no delegated power to restrict or ban weapons under the commerce clause.
I fail to see any point here. As Madison points out, Judge Coxe’s state of Pennsylvania required by law for militia members to provide for their own firearms, else they were state provided. These arms in a strict sense are “private arms” because of ownership. Whether you are required by law to provide your own arms or they are loaned is irrelevant. It is the fact militia members were compelled by law and not because of any personal right or choice to keep and bear these arms for purely private activities.
I think you may be misunderstanding what Judge Coxe is saying here. The quote “military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens,” is direct reference to the evils of a standing army. This is fully supportive of Madison’s argument of the 2A being a shield against these standing armies.
Peace.
Why does P.A. Madison not recognize the plain fact that the text of the 2nd amendment is “keep and bear arms”, and not merely “bear arms”? While one might plausibly argue for an idiomatic meaning in the case of “bear arms” standing alone, it is nonsensical to make that claim when the text is “keep and bear arms”, as “keep” refers to actual “arms”, not some figurative expression.
Furthermore Tench Coxe’s reference to “private arms” in describing what became the second amendment is significant not only for the reference to “private” arms(as opposed to gov. issued arms which could be taken back at will by the government), but also for confirming that “keep znd bear arms” in the second amendment was not understood in some idiomatic sense.
Tenche Coxe in the (Philadelphia)Federal Gazette,1789
“As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.â€
While the “political right” view has some basis in fact(T.Coxe’s above comment supports both political right and individual rights meaning), the extremely narrowly tailored right offered by the Stevens’ dissent fails.
Perhaps the strongest evidence for the political-right-only view is Aymette v. Tenn., yet Mr. Heller would have prevailed under that view. Note that the court in Ayemette did not limit the right to keep arms to those persons enrolled in the Tennessee state militia, instead the Ayemette court said the right to keep arms was an unqualified right of the citizen, so long as the arms were of the type used in civilized warfare.
There is so much wrong with P.A.’s essay that it would require more time than I am willing to invest to cover all the errors, but the below sums up where P.A. goes off track:
It is difficult to conceive how a mandatory duty to keep and bear arms by law for which a person could be fined or jailed for refusing can be elevated to an individual freedom beyond the reach of law.
But it is not difficult at all, a person can have both a duty and a right in regards to a thing(though the scope need not be exactly the same for the duty and the right), and when Congress, or a state legistlature, speaks of a “right”, we can be fairly sure they are referring to a “right” as opposed to a “duty”.
Consider Memorial and Remonstrance, where James Madison makes the case that “members of a free state” have a duty to speak out against ill-conceived legistlation. Later this same James Madison drafts the First Amendment which protects the right to petition for redress and the right of free speech, and free press.
And you have to wonder if the Supreme Court in 1886 really considered women and children and aged men (all citizens) as members of the reserve militia if they were capable of carrying arms of some sort:
“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states” (Presser v. State of Illinois, 1886)
The fact women were unable to “bear arms” but were free to purchase and own firearms is significant. You can bet pro-gun scholars and Roberts, Alito, Scalia, Kennedy, and Thomas want to avoid these inconvenient facts.
Just exactly where does it say that women are not allowed to “bear arms”? Just because it isn’t spelled out doesn’t mean that they don’t have that right.
Bad analogy. I suspect you are talking about the Taliban in Afghanistan, whom are actually trained and use IEDs and military weapons rather than personal civilian weapons.
Their effectiveness has a lot to do with the political restraints placed on the military for combating them. If this was WWII combat rather than a half-backed police operation would be destroyed by destroying their sanctuaries and leveling any villages they infest.
That’s real war.
Actually that’s a very good example (the one made by “Just a Soldier”). Most Afghani civilians are armed with automatic weapons and plenty of experience using them against their neighbours. Just because the Taliban prefers to use IEDs doesn’t mean that they don’t have small arms and it certainly doesn’t mean that the US military doesn’t have to take into account the capabilities of those small arms at all times.
If they didn’t have small arms and we did it would be a simple matter for us to walk in and shoot them – they cannot defend themselves with IEDs alone.
As for the conception that we could quickly win in Afghanistan if only we were willing to: “take the gloves off”, that is completely false. Have you forgotten that the Soviets were fought to a standstill by the Afghans and the Soviets were equipped with very heavy weapons and had absolutely no moral scruples to limit their behavior. The Soviets routinely tortured prisoners, took hostages, used chemical weapons and committed unspeakable atrocities AND STILL LOST.
The American military could never do that without exciting widespread oposition at home. The US will win in Afghanistan but it will be done by convincing the Afghan people that it is safe to trust us. Right now they are afraid that we will leave and the Taliban will murder them.
“Having an armed citizenry without training, regulation, discipline, defense strategies and communication is ineffective as an unarmed citizenry. An S/W .41 at home is not of any use against an invading army with tanks and AK-47′s. What you are talking about is trained militias which is what the 2A is talking about.”
Spoken like a true scholar and not a student of military science. You seem to understand the theory, but lack the practical application. An armed citizenry without training, regulation, discipline, defense strategies and communication has kept the most power military in the world at bay for 9 years now. I completed my 5th combat tour nearly a year ago and plan on deploying on my 6th in about 5 weeks. I have seen first hand the effectiveness of these so called lame militias. I welcome you to accompany me to show me first hand their ineffectiveness and the errors in my observations. In the end we will prevail, but not as the Leviathan rather as a partner in the struggle.
Lastly, the trained militia is defined in the US Constitution proper. The 2nd Amendment to the US Constitution merely prevents the government (federal as well as incorporated through the 14th to the states) from infringing on the right of the PEOPLE to hold and bear arms. So that the PEOPLE can (not may) participate in that militia as one example. Not for its only purpose, as demonstrated by the non-restrictive construct of the pre-ample.
Do away with all the gun laws they are not any good anyway.
Having an armed citizenry without training, regulation, discipline, defense strategies and communication is ineffective as an unarmed citizenry. An S/W .41 at home is not of any use against an invading army with tanks and AK-47′s. What you are talking about is trained militias which is what the 2A is talking about.
‘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.’
In that I beg to differ. An armed citizenry is and always will be the best first and last defense of our nation, owing to the literal vast size of our country. The scenarios for invasion are endless, as Hollywood can attest (IE: Red Dawn), and to believe that our military alone is adequate to the job of defending our nation at home, especially when it is engaged afar, is hopeful at best, and a recipe for disaster, at worst.
NRA never put forward a theory of individual rights to firearms beyond the police powers of a state until 1978. Why now they assert that it is the original operation of the 2A is probably their biggest fallacy.
Those amendment never conveyed anything of the sort. They were statements of federalism which explains why people of the states or the courts never resorted to them for local protection.
And you are wrong about the article not being definitive. It blasts truth from start to finish.
Interesting article, but certainly not definitive by any means. If the framers had meant to say the “states” or the “state militias” in order to covey a collective right then they would have. As Jim pointed out, they used the words “the people” just as they did in the 1st, 4th, 5th, 9th and 10th, which have consistently been held and understood to convey rights to individuals, not the people collectively. The concerns of Madison, Jefferson et al. are easily reconciled, as Luagha pointed out, in that the militia clause is explanatory, not limiting. In fact, the majority of the SC said the same thing when they struck down the Chicago gun ban.
I love how gun rights zealots continuously repeat made up quotes to support a federal right to to own a gun. Like falsely asserting Washington said, “Firearms stand next in importance to the constitution itself.” LOL
Gil: The people of the states formed the federal government, not the other way around. See the first three words of the Constitution: “We the people … . “
I’ll grant you have the facts on your side but I must remind you constitutional law through Supreme Court glasses requires no facts, just a majority of opinion from five in what law ought to be. It is a crummy system but that is what we have until the next revolution can fix it.
It appears Stephen P. Halbrook’s RKBA analysis needs to be put out for trash pickup.
Indeed. Why would those in the Federal Government essentially give permission for the people to engage in revolution and forcefully remove them from office? Or for that matter people rising up against State and Local Governments for that matter? If the 2nd Amendment supposely allows for the people to overthrow whichever government they like then why does the Constitution allows for the militia to be called forth to supress insurrections? Since insurrection would be defined as a group of citizens using arms to overthrow the government it’s quite clear the 2nd Amendment is talking about well-regulated militias not any and all Libertarians who think they can legally shoot dead politicians, police officers and tax collecters under the cause for “freedom”.
The answer is obvious – if the militia is composed of the citizenry and the citizenry is being oppressed by the government, then when the government calls up the militia to suppress rebellion they won’t do it.
If the government calls upon a standing army to suppress rebellion they will do it.
Got it now?
Are you trying to argue the people under their own state governments would oppress themselves?
I agree with you, Mr. Madison. The Second Amendment was intended to confirm the right of the people as an aggregate to provide well regulated militia security for their free states.
The Second Amendment follows up on a fundamental republican “right of the people” identified in the Declaration of Independence. The signers of that document declared that it is the right of the people to institute their own governments as free states. Such a right is exercised by the people in the aggretate, acting through elected representatives. Securing the continuation of free states through militia under state law was likewise a function of the people as an aggregate.
When the new Constitution was written in 1787, anti-federalists and some republicans, such as Thomas Jefferson, feared that it would lead to the demise of the milita system of defense and a military takeover by the new central government. Jefferson wrote letter after letter, to Madison and others, urging that the Bill of Rights include a provision to require reliance on militia rather than a peacetime standing army, which he considered a danger to the nation. The result was the Second Amendment, as Jefferson himself would later write.
The Second Amendment, in addressing the need of a free state for the security of a well regulated militia, protects the right of the people to keep arms and to provide militia service. In the exclusively militia context of the Second Amendment, the words “bear arms” mean “provide militia service.” The words “personal self-defense,” “hunting,” or “insurrection” appear nowhere in the amendment, either pro or con.
Like many, you confuse ‘explanatory’ with ‘limiting.’
The Copyright clause in the US Constitution:
Article 1, Section 8, Clause 8: The Congress shall have the power: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
As was recently handled in the Supreme Court, Copyright applies even if the subject being copyrighted does not ‘promote the progress of Science and useful Arts.’ The initial clause is explanatory, not limiting.
You are making the same mistake of construction in basic and legal english by hanging on the explanatory clause in the Second Amendment.
I don’t believe 2A scholars ever had an answer to the question of why woman were not allowed to “bear arms” but nonetheless were always free to own and use guns.
Good insights you provided Mr. Madison.
I have heard this arguement before but it doesn’t address the true meaning of the Bill of Rights. As I understand it, these rights are “God given” and not issued by any state (Federal or State)and as such are simply recognized in the Constitution. The other point to consider is the word “people”. If, as you say, the Second Amendment refers to the states, what is the meaning of the same word in the First Amendment?
Second Amendment zealots won’t like this history lesson
But yes, I always had the sense there was more to bearing arms then private ownership or personal defense.