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As a historian, have you given any thought to how the history of the second amendment is used in the courts? Do the arguments made by Federal Judges (below) trouble you at all?
Judge Reinhard of the Ninth circuit in Silveira v. Lockhart:
(quote)
Moreover, in other public fora, some of the framers explicitly
disparaged the idea of creating an individual right to personal
arms. For instance, in a highly influential treatise, John
Adams ridiculed the concept of such a right, asserting that the
general availability of arms would “demolish every constitution,
and lay the laws prostrate, so that liberty can be enjoyed
by no man — it is a dissolution of the government.” 3 JOHN 50
(end quote)
The actual quote in context exposes the Judge's lie.
Defense of the Constitution, John Adams:
”To suppose arms in the hands of citizens, to be used at individual discretion, EXCEPT IN PRIVATE SELF-DEFENCE, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws..."
(My emphasis)
The good judge could not have missed John Adams exception for
PRIVATE SELF-DEFENCE, nor could he misunderstand the meaning.
Also From Silveira v. Lockyer:
The Pennsylvania minority, so frequently cited by the proponents of the individual rights view, also used language markedly different from that of the Second Amendment. Its proposal for a federal constitutional amendment, which was rejected in favor of the Second Amendment, would have unambiguously established a personal right to possess arms for personal purposes: (my emphasis)
“o law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals . . . .” The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, at 623- 24 (quoted in Finkelman, supra, at 208).
(end quote)
Judge Reinhardt selectively quotes from the Pennsylvania Minority but he slips up and allows a little too much truth into his argument. The Judge admits that the provision that he quotes from is “unambiguously” directed to an individual right. A reading of the actual proposed amendments from the PA Minority is telling. Note that there were 14 proposed amendments in all, below are the 2 which are mentioned in the Silveira opinion.
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. (my emphasis)
11) That the power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of time only as such state shall agree.
That the sovereignty, freedom and independency of the several states shall be retained, and every power, jurisdiction and right, which is not by this constitution expressly delegated to the United States in Congress assembled. (excerpted from The Anti-Federalist and the Constitutional Convention Debates; Ralph Ketcham, Mentor, copyright 1986)
How does Judge Reinhardt explain that the words “the people have a right to bear arms” are in a proposed amendment that unambiguously was meant to establish an individual right? He doesn’t – Judge Reinhardt simply edits those words out of the original text when presenting his argument.
Furthermore, Judge Reinhardt’s argument that the PA Minority proposal is “markedly different” from the Second Amendment is laughable when viewed in the full text. The actual right expressed in the second amendment is nearly identical to the right expressed in the second amendment.
"The right of the people to keep and bear arms..."
(right as stated in the Second Amendment)
"The people have a right to bear arms..."
(right as stated in the Address of the PA minority )
Note that the right expressed in the Second Amendment is broader since there are no restrictive clauses following the statement of the right such as in the proposal of the PA minority. Judge Reinhardt would have us believe that the lack of restrictive clauses following the RKBA in the Second Amendment actually limits the RKBA in the Second amendment. That is assbackwards logic at best.
Then there is (DC Court) Judge Walton's feigned confusion on the word "keep" as it relates to the second amendment. Is it at all plausible that Judge Walton (or his assistant) does not know how to search for a word using Adobe (pdf)?
From Aymette:
"The convention, in securing the public political right in question, did not intend to take away from the legislature all power of regulating the social relations of the citizens upon this subject. It is true, it is somewhat difficult to draw the precise line where legislation must cease and where the political right begins, but it, is not difficult to state a case where the right of legislation would exist. The citizens have the unqualified right to keep the weapon, it being of the character before described as being intended by this provision. But the right to bear arms is not of that unqualified character. The citizens may bear them for the common defence; but it does not follow that they may be borne by an individual, merely to terrify the people or for purposes of private assassination. And, as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence...
(end quote)
from Miller:
The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared:
‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’ It further provided for organization and control of the Militia and directed that {b}‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.
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