The 2nd Amendment, Again.... A FROG's perspective

[frogfromthenorth2]

Yesterday I told a few DUers that I have written an article in French about the Second Amendment and it's historical context. A few people asked me why I thought that this Amendment didn't give the absolute right for people to bear arm. So here is my "answer". I didn't translate the whole article which I spent 3 months writing and researching. But I wrote an "English version" of what the essence of my text is. I don't pretend that IT IS the final answer to that age old question. Just my point if view on a VERY INTERESTING historical, legal, and sociological question. Actually, even if you don't agree with me, we can at least agree that it's a challenging question.

So here it is. Pardon the "clunky" style and grammar, it's the first time I write a "serious" text in English that is over 100 words.

It's impossible to discover the intent behind the second Amendment without looking at the historical context surrounding its adoption. Nine States were necessary to ratify the Constitution. The control of the militia was a big point of discussion between Madisson and Masson. Militia was essential, for the South, to control, the slaves. The way the text was written at that point gave control to all militias to Congress. The South knew that the North wasn't "comfortable" with the idea of slavery. Loosing the control of the militia meant loosing control of the slaves.

Madison, who was first against the ratification of the Bill of Right but finally became one of the architect of the 2nd Amendment.

The English Bill of Rights of 1689 was the inspiration for the US Bill of Rights. But they were mostly guided by the balance of power between the South and the North. One author, Carl T. Bogus, says that the main motivation wasn't "protection against tyranny" but the assurance that the South could keep control over the slaves. When you read the 2nd Amendment with that historical context in mind, it's obvious that the "subject matter" is the militia, not the right for individuals to bear arm.

It's interesting to note that this amendment is the only one who has a from of "preamble" to put the next affirmation in context. In a purely legal interpretation, such a preamble must be seen as a restriction to the scope of that Amendment. Clearly, it's the State right that is clearly protected. It address the concerns that the States had about the control of the militia. It's also important to know what "militia" meant at the end of the XVIIIe century in the colonies. They were organized and controlled by the States.

[LeahMira]

1. I didn't know that! Thanks.

Militia was essential, for the South, to control, the slaves. The way the text was written at that point gave control to all militias to Congress. The South knew that the North wasn't "comfortable" with the idea of slavery. Loosing the control of the militia meant loosing control of the slaves.

I had never heard this argument before. Coincidentally, however, I did see someone on TV just recently who said that North Carolina insisted on the Bill of Rights. This person claimed that the folks from New England didn't see the specific enumeration of rights as necessary. In light of what you have written, her comment makes sense... although she did not discuss reasons why North Carolina insisted on the first ten amendments.


Your English is quite clear and easy to understand. I would wish I could do as well in French!

[frogfromthenorth2]

2. You can learn more about that argument by reading this:

It's from this article:

Carl T. BOGUS , The Hidden History of the Second Amendment, U.C. Davis Law Review, 2001


"Bogus"... Not the best name to have when you want to be taken seriously...but you don't choose you name...lol

Thanks for your comment about my written English!!!

[Superfly]

3. Or, you could pick up something by this "authority"

<snip>

Professor of History Michael Bellesiles announced his resignation from the University Friday, bringing an eight-month investigation into his research to an end.

Bellesiles was under fire by fellow academics for alleged fraud in research conducted for his 2000 book Arming America: The Origins of a National Gun Culture.

<snip>

Link

[frogfromthenorth2]

4. Yep, I did read his stuff... But discarded it because HE WAS bogus

lol I did mention him in my article. When I talked about the "passionate" debate that is surrounding the issue and the fact that both sides are doing everything they can to "debunk" each other...

[Superfly]

5. And he has collaborated with Bogus

on one of his books...seems kinda fishy to me.

[frogfromthenorth2]

7. Oh yeah.... Guilt by association... I forgot that it was the way we juge

people in North America.... Ooops...... Then he me be rotten too.....

[Superfly]

8. Well, your colleagues are the first in the line of peer reviewers

Doesn't it stand to reason that the techniques he used in "Arming America" could have been used in the book he worked on with Bogus?

It seems very plausible, bringing Bogus' work into question.

[frogfromthenorth2]

9. The problem is that nobody made the demonstration that Bogus was Bogus...

By now, it would of been discovered... Since so many people are working on this subject, going back to the soucers.... that's what happened to Bellisle...he got caught...

[Superfly]

10. True, but it still does not mean

I will take Bogus' work as gospel without asking the question I posed above.

[frogfromthenorth2]

12. That is true...

And it would be very risky for me to say that his work is Gospel. If it was that easy, it would have become a non issue by now. That's why it would be pretentious of me to say "that's the truth and everything else is a bunch of lies...

Also, everything surrounding gun control cannot be resolved by looking at history. The Bill of Rights is a legal document. Depending on what your views on the interpretation of that document are, you can come back with many different interpretations. For myself, I see Constitutionnal documents as "living trees"... but that's a whole different subject....

[DoNotRefill]

20. For a counter-argument, try:

Levinson's "The Embarassing Second Amendment" from Yale L.J., Vol. 99, 637.

Here's a mirror of the article:

http://www.firearmsandliberty.com/embar.html

[YNGW]

6. 2nd Amendment

There were plenty of people in the Northern states who were making the big bucks off the slave trade, so I'm not on board with this.

>says that the main motivation wasn't "protection against tyranny"

Historical references point out that this is exactly the reason the 2nd Amendment was written. The founding fathers were very cautious about having a president, for they believed he might want to assume control and become king. And that was the very reason they had just fought for their independence, so they wouldn't have to answer to a king. With the citizenry able to keep and bear arms, it served two purposes: Keep in check the possibility that some president would want to become king, and the citizenry was prepared should England or another country try and invade.

>Clearly, it's the State right that is clearly protected. It address the concerns that the States had about the control of the militia. It's also important to know what "militia" meant at the end of the XVIIIe century in the colonies. They were organized and controlled by the States.

The founding fathers viewed the new country as a group of small, independent states (almost like small countries, if you will) that would contract between themselves and make alliances with other countries for trade, etc...., but that would band together under one flag should their sovereignty be threatened. Some of the framers wanted to give the majority of the power to the states, feeling that a strong central government would eventually swallow up states rights. Some others wanted a strong central government to ensure that individual states wouldn't embark on their own away from the agreed upon union of the states for particular matters. A compromise was reached. It would then be natural for the "militia" to be a "state militia".

For convenience of time and space, that's a brief overview. If others here wish to get more specific, that's up to them.

[frogfromthenorth2]

11. Hypothetical question

Let's say that Bush decided that he wouldn't hold elections and that he would keep power in his family forever (humm..is that so hypothetical?!?!) do you REALLY believe that the fact that each person owns a gun it would offer them protection against that? Isn't more believable that a "well organized" militia run by the States would be more logical to defend the rights of its people? Look at what happened in Iraq. They were almost all armed.... but no organized militia.

Also, when I read arguments about the fact that the Jews would of been OK if they had guns, it makes me cringe. Don't people remember Wako? This guy was pretty well armed, wasn't he? The "governement" with his military got the best of him.

[YNGW]

13. Good question.

Yes, I believe that if a president of any political background were to appoint himself dictator, I don't think the citizenry would stand for it. That includes many elements of the military brass who would see as their duty to protect "We The People". And should that happen, all political differences we currently argue over with our fellow citizens are off the table. Period. If that means picking up arms and fighting, then so be it.

There will be elections in 2004. If Bush wins, he's only president until 2008, and then there's another election. There are several here at DU who dream up some of these fantasies for whatever number of reasons (I know why, I just don't care to discuss it. It just causes flame wars and deleted messages.), to think bushite will suspend elections. Won't happen.

So to answer your questions one at a time:

>do you REALLY believe that the fact that each person owns a gun it would offer them protection against that?

It's a better alternative than NOT having a gun to protect yourself.

>Isn't more believable that a "well organized" militia run by the States would be more logical to defend the rights of its people?

Anything we could do as citizens to organize would be more effective.

>Look at what happened in Iraq. They were almost all armed.... but no organized militia.

These people have never known freedom. They do whatever they're told. It's been that way for hundreds of not thousands of years. That type of mentality is hard to break.

We have been free for over 200 years. I believe complacency could take place or you could have a charismatic leader who the people appoint as ruler one day (think Julius Caesar), but at this time in the history of our nation, I believe people would fight to keep the freedoms that is the right of every man.

>Jews

Would they have been OK? Probably not. I'm not overly confident they knew for certain they were being sent to die, at least not at first. If you were being sent to die anyway, would you go willingly, or would you go down fighting? I'm guessing if they had suspected more, they probably would have fought. I know I would and I would guess most people would fight if they knew they were going to die anyway. Obviously, it wasn't their fault.

>Waco

That one did trouble me since they could have arrested Koresh when he left the compound, as he occasionally did, if they suspected him of crimes. But his followers were convinced in what they believed, along the lines of the suicide bombers.

Mind you, I'm under no impression that the USA will last forever. Like all others countries that have ever existed, it too will fall or radically change in such a way that the USA (as we currently know it) will be the USA in name only. Countries fall for any of three different reasons or combinations thereof:

1) Governmental Decline
2) Military Decline
3) Moral Decline

Eventually, this country will succumb, just like all the others.

[frogfromthenorth2]

16. Very interesting answer! n/t

[DoNotRefill]

21. Well....

We're still taking casualties in Iraq, aren't we?

As for the Jews, look at the Warsaw Ghetto Uprising. It took the Nazis longer to put that down than it did for them to take Poland.

And there's a big difference between 100 armed people in a single place and 100 million armed people scattered all over the country. One is relatively easy to deal with, and one isn't.

[frogfromthenorth2]

22. For some reason, I think that is a simplistic view of the problem

Damn now I wish I was a fluent in English than in French. So bear with me on this, I hope you will understand my point.

For example, 1/2 of the Americans are opposed to the action of their government, especially Bush and co. They protest, they go to the streets but for some reasons the don't take up arms and fight the "tyrannic" bastard that is putting the USA on the road to hell...

Same thing in Germany. Do you really think that they were all in favor of exterminating Jews? A lot of them were pissed of by "foreigners" stealing their job, the bad economy. So, the chance of having a tyrannical government is not related to the fact that people are individually armed.

Another example. Here in Canada we have millions of guns and riffles. Let's say the USA wanted to invade us, would it almost lead to defeat for the USA. I don't think so either. Look at Koresh... he had no chance. Also, individuals with guns are no match for an army, BUT the same amount of persons under orders (a militia) would be more effective. So, this is why I say that it's a State's right and not an individual right...

Oh, and if you don't agree I won't think any less of you. Actually I am so happy to be able to talk about that subject here. I tried a year ago on FREAKREPUBLIK and I didn't last an hour.... :-)

[DoNotRefill]

23. OK...

"For example, 1/2 of the Americans are opposed to the action of their government, especially Bush and co. They protest, they go to the streets but for some reasons the don't take up arms and fight the "tyrannic" bastard that is putting the USA on the road to hell..."

Taking up arms against the government is the last possible resort. It's the absolutely last ditch effort to prevent usurpation. There's an old saying about "the three boxes" our country that are used to affect political change: "The soap box, the ballot box, and the cartridge box".

We're upset about Bush. That's what DU is about, the "soap box". Next election, we'll use "the ballot box" to throw the bastards out of office. If things went to the extreme, and our protests on the "soap box" and "ballot box" were to go ignored (for example if martial law was declared and elections suspended indefinitely) we'd have the final option of going to the "cartridge box" to seek redress of greivances. Hopefully, that'll never happen, but it's vital that the option remains there.

As for an invasion from the outside, let me ask you this. If a country was invaded and their army defeated in the field, would it be easier for the people to resist the occupation if they were armed or disarmed? Before you answer that, I'd point out what happened during WWII, when the British Isles were in danger of being invaded by the Nazis in Operation Sea Lion. There weren't enough guns to go around for the civilian population, so private individuals in the US donated their guns, and shipped them to England, where they apparently were distributed. Remember France during WWII? Was France better or worse off because of the resistance? How about in the Ost, like Yugoslavia and the Ukraine? Didn't partisans give the Nazis absolute fits? How about today in Iraq? If the Iraqi resistance didn't have access to weapons, don't you think our "pacification" efforts would be much further advanced than they are today?

It's hard to resist if you don't have guns.

[frogfromthenorth2]

24. Good point...

But I don't see here how it could mean that it's an individual right. You could achieve, IMO, the same thing even if you said that it was a states right. Example, if you forbid a State to have reservists or arms enough to distribute to its militia. You see what I mean?

[DoNotRefill]

32. How, exactly, can you forbid a state govt. from arming it's employees?

eom

[frogfromthenorth2]

35. Well, that's a good question... A Federal law forbidding State militia

could do it, no? Would be against 2nd amendment for sure.

[DoNotRefill]

51. If you read US gun control laws...

they almost all specifically exempt governmental agencies and their employees. This isn't just the State-run militias, it includes all State and municipal groups that are armed.

The States don't NEED the Second Amendment to arm their troops. They have the police powers.

[yagotme]

61. No, you federalize the state militia

and take it over.

[yagotme]

60. "The People"

Does the word "People" in the second amendment mean something different than the other times it is used in the first 10 amendments? Does the State have the right to peaceably assemble, or is it the People? The State has a right to assemble a militia, and the people have the right to bear arms. That is basically what they wrote back then, not having access to man held nuclear devices, they had no knowledge or preview of this type of weapon. As stated in other places in this thread, mass-killing devices (cannon) were usually kept in the local armory, which was controlled by either the leaders of the local militia, or the town leaders. Pre-revolution, these items were owned by the Brits, don't forget. This system was used for local defense, against pirates, marauders, indians, etc. A nuclear device of today would look silly sitting on your mantle, but would be kept in the local armory, if you want to bring yesteryear to today. Personal weapons, not squad-type, were kept in the homes of militia members. For hunting, and personal defense. If you were attacked by a large group, you would retreat to town, and sound the alarm to roust your militia members.

"To Arms, The British Are Coming".

[Damndifino]

27. Armed resistance

we'd have the final option of going to the "cartridge box" to seek redress of greivances

Rather than the mass uprising, I think the most likely scenario would be a modern version of Harper's Ferry. A terrorist incident, if you want to define it as that. This could lead to two results: the rebels are crushed right away, or civil war breaks out. And historically, civil wars tend to be won by those who have control of the army, not by armed peasants (if you'll forgive the term).

As for whether France was better or worse for the Resistance, in the short term it was worse off (raiding of produce, reprisals etc). Strategically, it made the Allied invasion easier. In the long term, the main value of the Resistance to France was as a focus for deflecting what was seen as a national humiliation. Armies are defeated by armies, not partisans.

[DoNotRefill]

31. insurgents very rarely win wars...

however the governments fighting insurgents often lose wars.

There are around 200 active members of the PIRA at any given time in Ireland fighting the entire British Empire. They all live on a tiny island where guns are beyond heavily regulated (so there's no local source of guns unless they manufacture them, and all training must take place overseas), and the british have tight control on who get in and out. So why haven't they been crushed?

[Damndifino]

53. This is such a big misrepresentation of the NI question...

... I scarcely know where to begin.

1. There is no British Empire. Just a small country with a small army.
2. The British army in Ulster is there in the role of armed police, not crushing force.
3. The conflict in Ulster has not been "lost" by any side.
4. The British government realised some time ago that armed force was not the solution to the problem of paramilitaries, and has been going down the road of negotiation.
5. The traditional source of firearms to the IRA? Yes, you've guessed it - the good ol' USA. All those Americans who think they're Irish.
6. The British do not have tight control on who gets in and out (except in terms of weapons smuggling). The trouble is self-contained.
7. The political/cultural/religious situation in Northern Ireland is far too complex to be solved by "crushing" anyone.

[DoNotRefill]

54. Ummm...

Last time I checked, the origins of the weapons of choice for the PIRA types was surplus combloc equipment, specifically the AK-47 (along with the makarov), which isn't generally available in the US. The AKs you find in the US are the "neutered" variety, and are of limited use to terrorists. Also, I recall that they have a fondness for mortars, which are tightly restricted in the US. Additionally, there's a fair bit of domestic production there. I recall seeing a picture taken at the Pattern Room of a SMG that was hand-made out of the leg of a piece of patio furniture and captured in NI. If you like, I'll email you a copy of it.

Regarding the conflict being "lost" or not: Do you really think they'd be negotiating with Sinn Fein if it weren't for the violence and threat of renewed violence? As I've said before, insurgents rarely win wars, but the government fighting them often lose them. The British government is negotiating with them, that's a victory in and of itself.

[Damndifino]

62. "Ummmm.... Ha!"

weapons of choice for the PIRA types was surplus combloc equipment

The one weapon which has been synonymous with the IRA during the past 30 years is the Armalite, a version of the M-16. Anyway, besides the actual weapons, the US has been a major source of IRA funding.

Reasons for negotiation: I'll give you a hint - it's not the violence (not the killing, anyway).

1. After the end of the Cold War, MI5 was able to channel the bulk of its resources into infiltrating the IRA, stopping up its sources of funding and weapons importation.
2. Sinn Fein began to realise that violence wasn't working; that it was in fact counter-productive.
3. Since the British government has never (in the past century anyway) wanted to keep Northern Ireland, it is not, politically, on one side or the other. It is therefore naturally predisposed towards negotiation.
4. If you imagine that the current negotiations seem to the IRA even remotely like a "victory", you're hallucinating.

[DoNotRefill]

68. Hmmm....click da link...

you'll notice what type of guns the soldiers are holding....doesn't look like an Armalite to me.

http://irsm.org/fallen/

Most of the pics and representations of weapons I found with Armalites are for "loyalist" forces.
Here's royalist murals with AKs:
http://cain.ulst.ac.uk/mccormick/photos/no836.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no865.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no905.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no929.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no956.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no963.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1029.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1031.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1036.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1046.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1065.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1174.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1207.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1214.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1285.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1468.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1485.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1492.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1605.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1654.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1723.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1733.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1752.htm#photo

Here's a loyalist mural with a combloc RPG:
http://cain.ulst.ac.uk/mccormick/photos/no928.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1272.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1483.htm#photo

Here's a loyalist mural with both ARs and AKs represented:
http://cain.ulst.ac.uk/mccormick/photos/no1187.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1210.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1270.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1409.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1460.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1470.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1623.htm#photo

Here's a republican mural with both an AK and a RPG:
http://cain.ulst.ac.uk/mccormick/photos/no1054.htm#photo

Here's a republican mural with an RPG:
http://cain.ulst.ac.uk/mccormick/photos/no1585.htm#photo

these are all republican murals, and all show at least one AK.
http://cain.ulst.ac.uk/images/photos/belfast/murloy3.htm#murloy3
http://cain.ulst.ac.uk/mccormick/photos/no194.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no337.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no800.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1220.htm#photo
http://cain.ulst.ac.uk/mccormick/photos/no1832.htm#photo


Going through the pics on the Provo's site, there's a very interesting selection of weapons, some Armalites, FALS, H&Ks, STENs, M1 carbines, Thompsons, and even some SMLEs and hunting rifles.

Given the sheer volume of AKs shown in the propaganda of BOTH sides, a person might conclude that there actually are AKs and RPGs in use over there, wouldn't you think?

[Damndifino]

80. I never said they weren't in use

Since the collapse of the Soviet bloc, it has become easy to obtain Soviet weapons. But over here (in the UK) our impression of IRA symbolism has been accumulating over a period of 30 years, and through most of that period the standard arm has been the Armalite. "Shooting" weapons are mostly of symbolic value for the paramilitaries of both sides, since most attacks against the army or the public use explosives.

Anyway, the salient point is whether or not there has been a "victory" of any description in Ulster. There has not. Just decades of useless misery and destruction.

[yagotme]

55. Alied Invasion of France

Yes, the invasion was made easier by the Resistance. It allowed Allied forces the opportunity, in many areas, to land, and progress inland, without large amounts of German forces approaching the front (along with the deception plans of the Allies). Paris, as I recall, was "liberated" by French forces attached/assigned to Patton's "3rd", as it would be a morale builder for the French. The Resistance made the Germans field more troops in France that were originally planned for, keeping them from deploying to the East. Pressure applied over a large area, by small forces, keeps large amounts of army troops/hardware busy, and keeps them from being applied in a concentrated/massed area.

[Nevernose]

15. I would agree with you about the slavery thing not being the main reason

There were also Indians, the British, and the countryside was essentially lawless in those days. It was the FRONTIER.

Howard Zinn was the first one I know of to posit the "control of the slaves" theory. But in fairness, it should be pointed out that Zinn lists in great detail all of the white slaves that were kept up until, roguhly, the Revolutionary War. Zinn also mentions the fact that virtually all slaves were shipped through Boston and New York.

(Persaonally, I find Zinn fascinating, though his work is often so biased it's hard to accept at face value)

Some of what you wrote, I believe, is paraphrased from the Anti-Federalist papers. Specifically the reasons for the right to bear arms being to defend against other nations and our own tyrannical one.

[suigeneris]

14. Bogus is news to me...

but the hypothesis is interesting. I'll look into it. Offhand, since there were provisions in the state constitutions, north and south, for militias and the keeping and bearing of arms, the argument doesn't ring strong, but I'll keep an open mind. It might have been an element of the thinking of some of the Framers.

You mentioned Madison was against ratification of the Bill of Rights. That's mistaken. What Madison was for was the ratification of the proposed Constitution - he was a federalist. Among the many objections to the Constitution by its detractors, the anti-federalists, was that it did not contain a bill of rights explicitly guaranteeing certain rights against government usurpation. Federalists felt this was unnecessary because the general government had only the power to act given it in the Constitution, and a bill of rights was potentially dangerous since failing to list a right might imply the right didn't exist or was weak.

Madison and other federalists acquiesced to the need for a bill of rights for two political purposes, 1.) to assuage anti-federalist fears of too much centralized power in the general government and thus to obtain their support sufficient to ratify the proposed Constitution and 2.) to prevent the assembly of a 2nd constitutional convention, which was a real possibility and which federalists knew would likely radically alter their summer's work. The tactic worked.

So Madison initially opposed the need for a bill of rights but warmed to the task of assembling, introducing and promoting one out of necessity. His general tack in the House as he explained the proposed bill of rights was that if properly constructed it could do no harm and might even do some good. Little did he know how much good.

Today, as freepers seem to think the Constitution and Bill of Rights are the srouce of and confer our rights, (the Bill of Rights merely lists certain preeminent individual rights and warns the government off messing with them,) most of us are glad for the Bill but recognize, as it does itself, that enumeration of some rights does not diminish others not listed. Still, when a citizen asserts a right in court it has long proved helpful if it can be reasonably inferred from the Bill of Rights.

As for the 2nd Amendment, it looks to me, and I have tried to prove otherwise, that it is an individual right.

It is important to note two things however: 1.) the Constitution, as amended, is what the Supreme Court says it is. and 2.) regardless of how uncompromising the language of the Bill appears, it has never been held that there are no conditions that can be placed on any of the rights enumerated and protected there. So, for example, that congress can make no law abridging the freedom of speech, (taking note of the doctrine of incorporation) does not mean you are free to advertise your opponent's candidacy for dogcatcher with a sound truck at 3:00 AM, nor, famously, shout fire in a crowded theater. It is not a vanity to assert that all the rights in the Bill of Rights can be conditioned on their not infringing the equal rights of (harming) another.

I see nothing in the 2nd amendment, assertive language notwithstanding, that prevents governments from regulating to some reasonable extent taking into account the interests of others, the personal ownership of weapons suitable for a militia of citizens. Man-portable atomic weapons would surely be useful to a militia but we don't have to be dumb enough to imagine that the 2nd amendment forces us to accept your neighbor's owning one, any more than he can own a working Stinger. In practice this means that while the ownership of rifles and handguns is doubtless protected by the 2nd amendment, US v Miller and a host of other decisions reviewing challenges to gun restrictions enacted by municipalities and states make clear that some regulation of what weapons and where they may be kept passes constitutional muster. And, Howard Dean and states' rights notwithstanding, I can't imagine that any state legislature would have the legitimate power to ban all gun ownership.

I'll look up Bogus and maybe learn something. My general view of original intent is that there is rarely any such thing as regards all the important and disputed passages. It is original intents, plural, if we can apprehend them. Thus all the old arguments will proceed, and no harm in that.

Edited for a couple of typos. Any stupid parts stand as written.

[frogfromthenorth2]

17. Indeed, Bogus is a very interesting read. n/t

[frogfromthenorth2]

18. Self kicking for the evening crowd....

[frogfromthenorth2]

19. Now...for the morning crowd....

[On the Road]

25. North vs South -- Fascinating

I never heard it put in that perspective. It makes perfect sense, though.

Another thing to consider is what INDIVIDUALS were behind the Second Amendment. Is there any record of who they were and what their consituencies were? My first thought was that they were representatives of the state governments and would thus propose amendments favorable to the interests of their states. This would suggest the milita theory.

On the other hand, the whole Bill of Rights was enacted because of popular dissatisfaction with the original Constitution, which had no bill of rights. I've tended to think of it as a grass roots movement, which would suggest the individual right to bear arms.

Now consider this: social legislation usually arises from the grass roots but is implemented by the powers that be, often with some telling modifications. Could it be that the inspiration for the Second Amendment was as an individual right, but it was changed by the state representatives to include or be replaced by the right of a state government to form a militia?

Maybe it's murky because it was designed to be.

[frogfromthenorth2]

26. Discussions around the second amendment during that period...

Theanford Levinson, a scholar who thinks that the second Amendment is an individual right, presents this quote from Mason to support his claim:

"I ask, sir, what is the militia? It is the whole people, except for a few public officials."

Well, if you read the whole thing in it's context (which Levinson doesn't) we realize that he was talking about social classes :

“the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people."

The same thing can be said about Madison's quote: : “…the advantage of being armed, which the Americans possess over the people of almost every other nation...” What is usually left out from that quote is this part when talking about militia:

“officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Looks more like a collective right than an individual right.

During the constitutional convention in Philadelphia (1787)and all the discussions surrounding the adoption of the constitution the "militia question" was the center of those debate, not the right for individuals to own guns.

[Damndifino]

28. This is a very interesting discussion

I tried to bring out some of these issues in my gun thread, but although many interesting points were made by the contributors, this historical context wasn't really elucidated. Thanks.

[frogfromthenorth2]

29. Yep, I have been following your thread. I decided to start

this one because I spent hours translating bits and part of my article. Didn't want it to be drowned in your voluminous thread after all that effort...lol... :-)

[On the Road]

30. You Are Well Versed in the History, FftN

which is one reason it's so hard to make an either/or case now.

Sounds like the whole question was framed differently back then. The milita and "the people" were the same. Hence, there was no conflict between the right to have a state militia and the right for individuals to own firearms. Having a militia encompassed the individual right.

The problem would have occurred only when professional armies no longer required private ownership of firearms. That would seem to make the individual right unnecessary.

Or it would -- except for the fact that the discussion seems to focus on armed rebellion against an unrepresentative government. If a state government today becomes unrepresentative (or cooperates with an unrepresentative federal government), resistance would have to come from armed individuals.

You could even question whether the practice of state militias using government-owned weapons infringes on the intent of the 2nd Amendment, which is for the people to perform this function as individuals.

This does not necessarily lead to NRA-type positions. It sounds like the intent of the right to bear arms was not for home security or sport, but to for popular democratic revolts. And perhaps that should be the basis for interpreting the amendment in constitutional cases.

[DoNotRefill]

34. actually...

"During the constitutional convention in Philadelphia (1787)and all the discussions surrounding the adoption of the constitution the "militia question" was the center of those debate, not the right for individuals to own guns."

There was considerable discussion of other gun related issues, such as the status of contientious objectors being forced to bear arms.

Check out Volokh's stuff for more info.....

[hansberrym]

79. Which is it ? a State right ? or an Collective right of the people?

First you said the second amendment was only a state right.

(quote from your intial post)
"It's interesting to note that this amendment is the only one who has a from of "preamble" to put the next affirmation in context. In a purely legal interpretation, such a preamble must be seen as a restriction to the scope of that Amendment. Clearly, it's the State right that is clearly protected. It address the concerns that the States had about the control of the militia. It's also important to know what "militia" meant at the end of the XVIIIe century in the colonies. They were organized and controlled by the States." (my emphasis)
(end quote)


But now you say it is a Collective right.

(quoting from: Discussions around the second amendment during that period...")

"Looks more like a collective right than an individual right.

During the constitutional convention in Philadelphia (1787)and all the discussions surrounding the adoption of the constitution the "militia question" was the center of those debate, not the right for individuals to own guns."
(end quote)


Which is it ? a State right ? or an Collective right of the people?


Furthermore there were discussions during the time period you cite concerning an proposed amendments that "unambiguously" refered to an individual right to possess arms.

Quoting 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 quoted from the Pennsylvania Minority but he sliped up and allowed a little too much truth into his argument. The Judge admited that the provision that he quoted from is “unambiguously” directed to an individual right. A reading of the (unedited versions) 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 the words “the people have a right to bear arms” in an amendment that unambiguously established an individual right? He doesn’t – Judge Reinhardt simply edits those words out of the original text.


Does it make sense that a there would be a Collective right to "keep and bear arms" when those actions were used to describe the actions of individuals?


“Keep”
To provide oneself with arms and to constantly maintain supply (as in the contemporary militia acts (cited in US v. Miller) of NY, MA, and VA. The and federal 1792 Militia Act had similar language..

From the Virginia Act cited in Miller; “every officer and private …shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by the commanding officer…” (my emphasis)



“Bear arms”
At a minimum this phrase refers “to render military service in person” as per Madison’s draft of the amendment and other references describing “bearing arms” as the action of an individual.

Madison: “…no person scrupulous of bearing arms, shall be compelled to render military service in person ”. (my emphasis)

George Wyethe of the Virginia convention: “…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Also from the Rhode Island convention: (nearly identical to Wyethe)
“…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Note that all three sources cited by the 9th Circuit use the term “bearing arms” to indicate an individual’s action- as opposed to a collective or state action. And while the specific references concern military service, just as the collective rights advocates claim, this does not preclude a broader meaning. Note that there
is nothing in the wording to make it a conditional (such as; if, when, only, etc.) However the clear reference to individual action, does disprove the collective rights advocates claim that ONLY collective rights are intended.

[DoNotRefill]

33. Technically...

the Constitution doesn't spring from the States, it springs from the people.

The States didn't have the authority to grant the powers sought, which is why a new constitution was drafted, instead of simply amending the Articles of Confederation.

[rexcat]

36. I like the Ohio Constitution as far as the right to bear arms...

Ohio Constitution
Article 1 - Bill of Rights
§ 04 Bearing arms; standing armies; military powers (1851)
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

We have the absolute right to own firearms in the State of Ohio!

[frogfromthenorth2]

37. Well, there is nothing "obscure" about that one, that's for sure...

Too bad I don't have a good knowledge about State's constitutions. Is there a provision where it says that the rights difined there are not "absolute" but can be regulated ... That's what we have up here...

[doc03]

38. Concealed carry in Ohio

It will be interesting to see if our new concealed carry law will reduce crime. Myself I think it will. I plan on applying for a permit
ASAP.

[frogfromthenorth2]

39. "new concealed carry law will reduce crime." How exactly can

it reduce crime?

[doc03]

40. Well that's the NRA claim

I will be interested to see what happens. A bad guy my think twice
about robbing or attacking someone if thinks you are caring a gun.
Then again I worry about the road rage nuts running around.

[frogfromthenorth2]

41. I wouldn't bet the farm on that prediction... I am quite sure there will

be more "rage" killing than lives saved by Zorro carrying a gun tuck under his belly full of fat...

[yagotme]

58. "Road rage"

Florida has had concealed carry for quite some time now, and I haven't heard reports of numerous cases of road rage turning into "western shootouts". As a matter of fact, I believe there are 30 plus states here that have some type of concealed carry legislation. Where are the OK Corral's at?

[DoNotRefill]

67. Not 30....try 40+

Ohio just passed it, bringing the total to something like 45 states that allow at least some form of CCW.

[doc03]

42. Maybe we have nothing to steal but

I don't think you can dispute the fact that in rural areas where everyone has a gun in their house the crime is much lower than in the city where they have strict gun laws.

[frogfromthenorth2]

43. Isn't that fact more related to the fact that in cities there are more

people, more poverty, more opportunity... and it has nothing to do with gun laws?

[doc03]

45. More poverty?

Southeastern Ohio has a average wage on par with West Virginia.
If you take the difference in population into account the crime rate in this area is much lower than in the city.

[frogfromthenorth2]

46. Ok... well, more like promiscuity...

[doc03]

47. Remember Dillon

We had that nut Dillon running around down here a few years ago killing people. I would feel safer when I am outdoors fishing or
whatever if I had a pistol, sometimes you can run into some real nuts. I must sign off I have a job to go to.

[yagotme]

57. Criminals

are known to prey on victims weaker than themselves. If a criminal believes a victim is armed, he will more than likely avoid that person. If he doesn't know who is armed, and who isn't, he knows he is taking a higher risk in attempting a criminal act. (Have worked in prisons for about 13 years, to date. Most "thugs" are basically cowards. Won't bother you unless they believe they have the advantage, in size, surprise, or numbers.)

[Damndifino]

63. ...and armed criminals

If a criminal believes a victim is armed, he will more than likely avoid that person.

...Or arm himself. With a bigger gun. And make sure he shoots first, and find out afterwards whether the victim was carrying.

[frogfromthenorth2]

64. Didn't think about that one....

Hum... It's what you could call escalation of violence.

I live downtown the second biggest city in Canada. The only person I know who owns a gun (not a riffle) is a friend who lives in Ohio... If I wanted to buy a gun (not a riffle) today I wouldn't even know where to go! I know I would need a permit to own and another one whenever I want to move it around.

If a criminal pulled a gun on me in the street wanting my wallet I am sure it wouldn't do a frigging difference if I was armed or not. It's a false security. Anyway, statistically, people who end up getting hurt by guns are the owners or people they know.

[Damndifino]

65. Exactly...

I don't have the figures to hand, but according to Michael Moore (in Stupid White Men), in the vast majority (over 90%) of intruder incidents where the homeowner tries to use a gun in defence, he ends up either shooting a member of his family by accident, or the intruder seizes the gun and shoots him with it.

(On edit: Looking again at your post, I'm not sure you didn't misunderstand me. I was talking about the criminal arming himself with a bigger gun.)

[frogfromthenorth2]

66. I know... So we get a bigger one...and he gets an even bigger one

so it never stops! That's why I think some sort of gun control is logical...

[yagotme]

69. But is it logical...

to pass a law that disarms you, and not the criminal? The definition of a criminal is one who does not obey the law, so passing laws to make a criminal stop carrying a gun is ludicrous, itself.

[Damndifino]

81. The experience in countries other than the US...

... is that criminals generally arm themselves to the degree (or just beyond the degree) to which the public and police are armed. There are exceptions, of course (bank robbers, drug dealers etc) but your common-or-garden housebreaker or mugger will only arm himself if he thinks the robbee will be armed.

[yagotme]

70. Where

does Mr. Moore get his figures? I've heard of cases of where homeowners/shopkeepers kept criminals at bay (Korean shopkeepers, LA riots, r.e.).

[NavajoRug]

44. In my opinion, there are a few basic flaws in your analysis . . .

1. I know of no such situation (especially as far back as the late 1700s) where there was any need in the South to use organized "militias" to control the slaves. In fact, the most precarious times for the newly-independent nation in the post-Revolution years were when Shays Rebellion broke out in the hills of western Massachusetts in the late 1780s and the Whiskey Rebellion engulfed western Pennsylvania in the early 1790s. The most serious philosophical conflicts in the new nation were not between North and South, but between the inhabitants of the population centers along the coast of each state and those who lived in the rural areas along the spine of the Appalachian Mountains.

2. The "preamble" does nothing to change the meaning of the Second Amendment in the way you described -- mainly because there is no such thing in the U.S. Constitution as a right that applies only on a state level. The U.S. Constitution did not look upon "rights" as something that was given to the people, or to states -- the Bill of Rights was essentially a limitation on the powers of the Federal government.

3. The right to keep and bear arms was foremost in the minds of the founders of this country, since a well-armed populace was precisely what ended up defeating the British. The first battle of the American Revolution, in fact, was fought when a British army unit was sent from Boston to the village of Concord to seize a cache of weapons that were hidden there -- and were intercepted by a small band of colonial militiamen on the way.

[frogfromthenorth2]

48. You should try to get your hands on Bogus article. He explains it

in a more detailed way than me.

[NavajoRug]

50. If you have a link to it, I'd love to read it . . .

I've come across references to several of Bogus' articles on this topic, but none of them have links to the articles.

[frogfromthenorth2]

52. The link I have...

The only thing I found is this "synopsis" of the article found here :

http://www.vpc.org/fact_sht/hidhist.htm

The full version is on Lexuis-Nexus. So it can't be posted here. :-( If you ahve somebody who has acces the full reference is:

The Hidden History of the Second Amendment, 31 UC Davis L. Rev. 311 (1998)

[yagotme]

59. NavajoRug;

You missed the second battle, also. Lexington was also fought over arms. The British were sent to both locations to seize the arms of the "militia", which were the cannons kept by the local government at the armory, the powder, shot, etc. stored at the armory, and any surplus shoulder arms found there. The "militia" kept their firearms in their homes, and met and drilled (regulated) occasionally, primarily with arms purchased privately. So far, everyone has made reference to who the "militia" was, but no one has offered an actual definition. The militia in the 1700's was every able bodied male citizen, age ?16-60?, who was to be trained, and led, "by officers elected from among them" (prior post). This was the 1700's meaning of regulated, in regards to a body of men, to be well trained.

[NavajoRug]

72. Thanks for the information . . .

I wasn't aware that Concord and Lexington were actually separate arsenals. I thought Concord was the main target, and the Battle of Lexington was fought when the British troops were ambushed by the colonial militia on their way back to Boston.

[hansberrym]

49. consider...

It's interesting to note that this amendment is the only one who has a form of "preamble" to put the next affirmation in context. In a purely legal interpretation, such a preamble must be seen as a restriction to the scope of that Amendment.

Oh really? Does the state of Virginia (Madison’s home) treat this “Preamble” as restricting the right that follows? Below are excerpted from the Virgina Bill of Rights, 1776.

12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.

15. That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles


Note that (12) does not protect only those publications that would tend to be "a bulwark of liberty" from government control.

Note that (15) is one long declaration of assumed truth and no expressed right follows it.

Philosophical declarations are not unique to the second amendment, nor were they unfamiliar to its framers.


“Clearly, it's the State right that is clearly protected.”

The only right clearly protected is “the right of the people”. If there is any right of the state in the second amendment, it is merely implied. The thing implied can not reasonably be said to be more important than the thing explicitly stated. It is a constitutional amendment -not a poem.




“It address the concerns that the States had about the control of the militia.”

If it does, it does so only by implication. However there is an expressed concern that “the right of the people... shall not be infringed.”






“It's also important to know what "militia" meant at the end of the XVIIIe century in the colonies. They were organized and controlled by the States.”


That WAS true under the Articles of Confederation, but ratification of the US Constitution changed that. The US Constitution grants the power to organize and the ultimate control over the militia to the Federal Government. Note that the militia can be called into service of the Federal Government and the state governments have no power to prevent this “federalization”.

Note that the creation and organization of the National Guard (which the Collective Rights Advocates claim is today’s militia) was authorized by an act of the US Congress. Also the National Guard can be called into service of the Federal Government regardless of what the state governments desire.

[Z-axis]

56. As a matter of application

It seems clear to me, in any discussion of the US Constitution, left or right, that it was a document fashioned through a process of quid quo pro -- I'll concede a little of this if you'll concede a little of that. Whether North or Sourth, rural or urban, state or federal, the process was always a series of trade-offs.

The ghost of the spirit, the operating mechanism of how to apply constitutional propositions across the changes of time and circumstance remain the legacy of that initial spirit. That spirit is not specified within the Constituion. It rests on the unwritten subtext of the document -- the social contract that each and all citizens agree to accept as an enforceable4 guide to the limits of behavior/power on both sides of the quid quo pro - the state side and the citizen side.

There's a long discussion that can follow on that thesis. But, for my money, it comes down to what McWilliams' concluded ("It Ain't Nobody's Business If I Do"). If the liberals want to have the First Ammendment and all that we can interpret from that gem of protective implications, then they've got to give the conservatives the 2nd Amendment and all that they wish to extract from it.

[MrHobbs]

71. wait a minute.

The Bill of Rights consist of Ten Rights that are gauranteed to the people,not the state.Why would the architects of the Bill of Rights want to gaurantee a right to the state?
If they indeed gaurantee the right of the state then the second amendment would be the only amendment to do that.

[Lone_Wolf_Moderate]

73. I've never heard that before..

It's a thought-provoking argument. I have a hard time believing that the Framers only wanted the national guard (modern equivalent of militas to bear arms. The last line of the 2nd amendment says that the right of the people to bear arms shall not be infringed. Of course we need common sense restrictions (that's why it's a well-regulated militia, meaning law-abiding citizens of adult age). Nevertheless, you've given me something to think about.

[frogfromthenorth2]

74. That was exactly the purpose of my post...

To give some food for thought. I don't think that I hold THE TRUTH, far from that. A lot of Scholars make a living just on the interpretation of «The Embarrassing Second Amendment» ( Sanford LEVINSON)

Maybe because this piece of legislation is, as Don Higginbotham says, « heavy in emotional content but thin in substance ».

For myself, I think it's a fascinating subject that can't be discarded when talking about American social history. I must also admit that I quite happy about the number I got on this thread and all the interesting discussions that went on. And most off all, I am glad nobody told me to shut the f*ck up and go away... lol :-)

[DoNotRefill]

75. If you really want some interesting historical perspective...

try "Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876" by Halbrook. It's a bit dry, since it's a legal treatise, but it's truly fascinating as far as looking at the roots of gun control and the long-standing purpose of gun control, mainly to make sure minorities were disarmed and unable to resist white aggression.

[frogfromthenorth2]

76. Thank you, I will certainly try to put my hand on it...

:-)

[Old Lefty]

77. Why a Frog has any interest in our second amendment

is interesting. One of them most important right any human being can have is the right to self preservation and the protection of his family and property. The second amendment ensures these protections. These protections encompass safety from criminals, foreigners and our own government.

As far as your comparison of Jews to the handful of wackos at Waco, there were, what, six million Jews exterminated? Six million armed Jews could have ruined Hitlers day. It doesn't take much to organize and motivate people who are being slaughtered.

No other country could ever understand our second amendment, or our constitution. No other country has the freedoms the U.S. has, and no other people have the innate desire of self determination free of government influence.

[frogfromthenorth2]

78. "No other country could ever understand".... Woo don't get excited

I don't think that you are right when you say that "no other country has the freedom the U.S. has..." It's a bit pretentious ans even pumpous... Right now, from where I stand, I don't have to live under the Patriot act and the shoe searching at the airport or the idiocy of your President. Actually I feel quite free.

[frogfromthenorth2]

82. Hummm... I see that you have nothing much to say for yourself...

eom